**Exhibit 2.4**

 

**EXECUTION VERSION**

 

GRIFOLS WORLDWIDE OPERATIONS LIMITED

 

$1,000,000,000 5.25% SENIOR NOTES DUE

 

2022 INDENTURE

 

Dated as of March 12, 2014

 

The Bank of New York Mellon Trust Company, N.A.,  as Trustee

 

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**TABLE OF CONTENTS**

 
| ** **                       | ** **                                          | **Page** |
|----------------------------------|-----------------------------------------------------|----------|
|                             |
| ARTICLE 1                   |
|                             |
| DEFINITIONS AND INCORPORATION BY |
| REFERENCE                        |
|                             |                                                |     |
| Section 1.01.               | Definitions                                         | 1        |
| Section 1.02.               | Other Definitions                                   | 29       |
| Section 1.03.               | Incorporation by Reference of Trust Indenture Act   | 29       |
| Section 1.04.               | Rules of Construction                          | 30       |
|                             |                                                |     |
| ARTICLE 2                   |
|                             |
| THE NOTES                        |
|                             |                                                |     |
| Section 2.01.               | Form and Dating                                | 30       |
| Section 2.02.               | Execution and Authentication                        | 31       |
| Section 2.03.               | Registrar and Paying Agent                          | 32       |
| Section 2.04.               | Paying Agent to Hold Money in Trust                 | 32       |
| Section 2.05.               | Holder Lists                                        | 33       |
| Section 2.06.               | Transfer and Exchange                               | 33       |
| Section 2.07.               | Replacement Notes                                   | 46       |
| Section 2.08.               | Outstanding Notes                                   | 46       |
| Section 2.09.               | Treasury Notes                                      | 47       |
| Section 2.10.               | Temporary Notes                                     | 47       |
| Section 2.11.               | Cancellation                                        | 47       |
| Section 2.12.               | Defaulted Interest                                  | 47       |
| Section 2.13.               | CUSIP or ISIN Numbers                               | 48       |
| Section 2.14.               | Additional Interest                                 | 48       |
|                             |                                                |     |
| ARTICLE 3                   |
|                             |
| REDEMPTION   AND PREPAYMENT      |
|                             |                                                |     |
| Section 3.01.               | Notices to Trustee                                  | 48       |
| Section 3.02.               | Selection of Notes to Be Redeemed or Repurchased    | 48       |
| Section 3.03.               | Notice of Redemption                                | 49       |
| Section 3.04.               | Effect of Notice of Redemption                      | 50       |
| Section 3.05.               | Deposit of Redemption Price                         | 50       |
| Section 3.06.               | Notes Redeemed in Part                              | 51       |
| Section 3.07.               | Optional Redemption                                 | 51       |
| Section 3.08.               | Mandatory Redemption                                | 52       |
| Section 3.09.               | Offer To Purchase by Application of Excess Proceeds | 52       |
| Section 3.10.               | Redemption for Taxation Reasons                     | 54       |
|                                  |                                                     |          |  |

 

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| ** **              | ** **                                                                          | **Page** |
|-------------------------|-------------------------------------------------------------------------------------|----------|
|                    |                                                                                |     |
| ARTICLE 4          |
|                    |
| COVENANTS               |
|                    |                                                                                |     |
| Section 4.01.      | Payment of Notes                                                                    | 54       |
| Section 4.02.      | Maintenance of Office or Agency                                                     | 55       |
| Section 4.03.      | Reports                                                                             | 55       |
| Section 4.04.      | Compliance Certificate                                                              | 56       |
| Section 4.05.      | Taxes                                                                               | 57       |
| Section 4.06.      | Stay, Extension and Usury Laws                                                      | 57       |
| Section 4.07.      | Corporate Existence                                                                 | 57       |
| Section 4.08.      | Payments for Consent                                                                | 58       |
| Section 4.09.      | Incurrence of Indebtedness and Issuance of Disqualified Stock   and Preferred Stock | 58       |
| Section 4.10.      | Restricted Payments                                                                 | 62       |
| Section 4.11.      | Liens                                                                               | 66       |
| Section 4.12.      | Asset Sales                                                                         | 66       |
| Section 4.13.      | Dividend and Other Payment Restrictions Affecting   Restricted Subsidiaries         | 68       |
| Section 4.14.      | Transactions with Affiliates                                                        | 70       |
| Section 4.15.      | [Reserved]                                                                          | 71       |
| Section 4.16.      | [Reserved]                                                                          | 71       |
| Section 4.17.      | Designation of Restricted and Unrestricted Subsidiaries                             | 71       |
| Section 4.18.      | Repurchase at the Option of Holders Upon a Change of   Control                      | 72       |
| Section 4.19.      | Additional Guarantees                                                               | 74       |
| Section 4.20.      | Covenant Suspension                                                                 | 74       |
| Section 4.21.      | Additional Amounts                                                                  | 75       |
| Section 4.22.      | Maintenance of Listing                                                              | 77       |
|                    |                                                                                |     |
| ARTICLE 5          |
|                    |
| SUCCESSORS              |
|                    |                                                                                |     |
| Section 5.01.      | Merger, Consolidation or Sale of Assets                                             | 78       |
| Section 5.02.      | Successor Company Substituted                                                       | 79       |
|                    |                                                                                |     |
| ARTICLE 6          |
|                    |
| DEFAULTS   AND REMEDIES |
|                    |                                                                                |     |
| Section 6.01.      | Events of Default                                                                   | 80       |
| Section 6.02.      | Acceleration                                                                        | 82       |
| Section 6.03.      | Other Remedies                                                                      | 82       |
| Section 6.04.      | Waiver of Past Defaults                                                             | 82       |
| Section 6.05.      | Control by Majority                                                                 | 83       |
| Section 6.06.      | Limitation on Suits                                                                 | 83       |
| Section 6.07.      | Rights of Holders to Receive Payment                                                | 83       |

 

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| ** **                                 | ** **                                                                                      | **Page** |
|--------------------------------------------|-------------------------------------------------------------------------------------------------|----------|
|                                       |                                                                                            |     |
| Section 6.08.                         | Collection Suit by Trustee                                                                      | 83       |
| Section 6.09.                         | Trustee May File Proofs of Claim                                                           | 84       |
| Section 6.10.                         | Priorities                                                                                      | 84       |
| Section 6.11.                         | Undertaking for Costs                                                                           | 85       |
|                                       |                                                                                            |     |
| ARTICLE 7                             |
|                                       |
| TRUSTEE                                    |
|                                       |                                                                                            |     |
| Section 7.01.                         | Duties of Trustee                                                                               | 85       |
| Section 7.02.                         | Rights of Trustee                                                                               | 86       |
| Section 7.03.                         | Individual Rights of Trustee                                                                    | 87       |
| Section 7.04.                         | Trustee’s Disclaimer                                                                       | 87       |
| Section 7.05.                         | Notice of Defaults                                                                              | 88       |
| Section 7.06.                         | Reports by Trustee to Holders                                                                   | 88       |
| Section 7.07.                         | Compensation and Indemnity                                                                      | 88       |
| Section 7.08.                         | Replacement of Trustee                                                                          | 89       |
| Section 7.09.                         | Successor Trustee by Merger, etc.                                                          | 90       |
| Section 7.10.                         | Eligibility; Disqualification                                                                   | 91       |
| Section 7.11.                         | Preferential Collection of Claims Against Issuer                                                | 91       |
|                                       |                                                                                            |     |
| ARTICLE 8                             |
|                                       |
| LEGAL   DEFEASANCE AND COVENANT DEFEASANCE |
|                                       |                                                                                            |     |
| Section 8.01.                         | Option to Effect Legal Defeasance or Covenant Defeasance                                        | 91       |
| Section 8.02.                         | Legal Defeasance and Discharge                                                                  | 91       |
| Section 8.03.                         | Covenant Defeasance                                                                             | 91       |
| Section 8.04.                         | Conditions to Legal or Covenant Defeasance                                                      | 92       |
| Section 8.05.                         | Deposited Money and Government Securities to be Held in   Trust; Other Miscellaneous Provisions | 93       |
| Section 8.06.                         | [Reserved]                                                                                      | 93       |
| Section 8.07.                         | Reinstatement                                                                                   | 94       |
|                                       |                                                                                            |     |
| ARTICLE 9                             |
|                                       |
| AMENDMENT,   SUPPLEMENT AND WAIVER         |
|                                       |                                                                                            |     |
| Section 9.01.                         | Without Consent of Holders of Notes                                                             | 94       |
| Section 9.02.                         | With Consent of Holders of Notes                                                                | 95       |
| Section 9.03.                         | Compliance with Trust Indenture Act                                                             | 97       |
| Section 9.04.                         | Revocation and Effect of Consents                                                               | 97       |
| Section 9.05.                         | Notation on or Exchange of Notes                                                                | 97       |
| Section 9.06.                         | Trustee to Sign Amendments, etc.                                                           | 97       |
| Section 9.07.                         | Payments for Consent                                                                            | 97       |

 

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| ** **                                                                                             | ** **                                                                                                      | **Page** |
|--------------------------------------------------------------------------------------------------------|-----------------------------------------------------------------------------------------------------------------|----------|
|                                                                                                   |                                                                                                            |     |
| ARTICLE 10                                                                                        |
|                                                                                                   |
| GUARANTEES                                                                                             |
|                                                                                                   |                                                                                                            |     |
| Section 10.01.                                                                                    | Guarantee                                                                                                       | 98       |
| Section 10.02.                                                                                    | Limitation on Guarantor Liability                                                                               | 99       |
| Section 10.03.                                                                                    | Execution and Delivery of Guarantee                                                                             | 100      |
| Section 10.04.                                                                                    | Guarantors May Consolidate, etc., on Certain   Terms                                                  | 100      |
| Section 10.05.                                                                                    | Release of Guarantees                                                                                           | 101      |
|                                                                                                   |                                                                                                            |     |
| ARTICLE 11                                                                                        |
|                                                                                                   |
| SATISFACTION   AND DISCHARGE                                                                           |
|                                                                                                   |                                                                                                            |     |
| Section 11.01.                                                                                    | Satisfaction and Discharge                                                                                      | 102      |
| Section 11.02.                                                                                    | Deposited Money and Government Securities To Be Held in   Trust; Other Miscellaneous Provisions                 | 102      |
| Section 11.03.                                                                                    | Repayment to Issuer                                                                                             | 103      |
|                                                                                                   |                                                                                                            |     |
| ARTICLE 12                                                                                        |
|                                                                                                   |
| MISCELLANEOUS                                                                                          |
|                                                                                                   |                                                                                                            |     |
| Section 12.01.                                                                                    | Trust Indenture Act Controls                                                                                    | 103      |
| Section 12.02.                                                                                    | Notices                                                                                                         | 103      |
| Section 12.03.                                                                                    | Communication by Holders of Notes with Other Holders of   Notes                                                 | 105      |
| Section 12.04.                                                                                    | Certificate and Opinion as to Conditions Precedent                                                              | 105      |
| Section 12.05.                                                                                    | Statements Required in Certificate or Opinion                                                                   | 105      |
| Section 12.06.                                                                                    | Rules by Trustee and Agents and No Personal Liability   of Directors, Officers, Employees and Stockholders | 105      |
| Section 12.07.                                                                                    | Governing Law                                                                                                   | 106      |
| Section 12.08.                                                                                    | No Adverse Interpretation of Other Agreements                                                                   | 106      |
| Section 12.09.                                                                                    | Successors                                                                                                      | 106      |
| Section 12.10.                                                                                    | Severability                                                                                                    | 106      |
| Section 12.11.                                                                                    | Counterpart Originals                                                                                           | 106      |
| Section 12.12.                                                                                    | Table of Contents, Headings, etc.                                                                          | 106      |
| Section 12.13.                                                                                    | Waiver of Jury Trial                                                                                            | 106      |
| Section 12.14.                                                                                    | Agent for Service; Submission to Jurisdiction; Waiver of   Immunities                                           | 106      |
| Section 12.15.                                                                                    | Judgment Currency                                                                                               | 107      |
|                                                                                                   |                                                                                                            |     |
| Exhibit A   — Form of Note                                                              |
| Exhibit B   — Form of Certificate of Transfer                                           |
| Exhibit C   — Form of Certificate of Exchange                                           |
| Exhibit D   — Form of Notation of Guarantee                                             |
| Exhibit E   — [Reserved]                                                                     |
| Exhibit F   — Form of Supplemental Indenture to be Delivered by Subsequent   Guarantors |

 

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CROSS-REFERENCE TABLE*

 
| **Trust Indenture Act** | ** **                   | **Indenture** |
|-----------------------------------|------------------------------|---------------|
| 310                               | (a)(1)                       |          | 7.10 |
|                              | (a)(2)                       |          | 7.10 |
|                              | (a)(3)                       |          | N.A. |
|                              | (a)(4)                       |          | N.A. |
|                              | (a)(5)                       |          | 7.10 |
|                              | (b)                          |          | 7.10 |
|                              | (c)                          |          | N.A. |
| 311                               | (a)                          |          | 7.11 |
|                              | (b)                          |          | 7.11 |
|                              | (c)                          |          | N.A. |
| 312                               | (a)                          |          | 2.05 |
|                              | (b)                          |          | 12.03 |
|                              | (c)                          |          | 12.03 |
| 313                               | (a)                          |          | 7.06 |
|                              | (b)(2)                       |          | 7.06 |
|                              | (c)                          |          | 7.06;   12.02 |
|                              | (d)                          |          | 7.06 |
| 314                               | (a)                          |          | 4.03;   10.02 |
|                              | (a)(4)                       |          | 4.04 |
|                              | (b)                          |          | N.A. |
|                              | (c)(1)                       |          | 12.04 |
|                              | (c)(2)                       |          | 12.04 |
|                              | (c)(3)                       |          | N.A. |
|                              | (d)                          |          | N.A. |
|                              | (e)                          |          | 12.05 |
|                              | (f)                          |          | N.A. |
| 315                               | (a)                          |          | 7.01 |
|                              | (b)                          |          | 7.05,   12.02 |
|                              | (c)                          |          | 7.01 |
|                              | (d)                          |          | 7.01 |
|                              | (e)                          |          | 6.11 |
| 316                               | (a)(last   sentence)         |          | 2.09 |
|                              | (a)(1)(A)                    |          | 6.05 |
|                              | (a)(1)(B)                    |          | 6.04 |
|                              | (a)(2)                       |          | N.A. |
|                              | (b)                          |          | 6.07 |
|                              | (c)                          |          | 2.12 |
| 317                               | (a)(1)                       |          | 6.08 |
|                              | (a)(2)                       |          | 6.09 |
|                              | (b)                          |          | 2.04 |
| 318                               | (a)                          |          | 12.01 |
|                              | (b)                          |          | N.A. |
|                              | (c)                          |          | 12.01 |
|                              | N.A.   means not applicable. |          |   |

 

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*              This Cross-Reference Table is not part of this Indenture.

 

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This INDENTURE dated as of March 12, 2014, is by and between Grifols Worldwide Operations Limited (the “*Issuer*”), a private limited company incorporated under the laws of Ireland, and The Bank of New York Mellon Trust Company, N.A., a national banking association, as trustee (the “*Trustee*”).

 

The Issuer and the Trustee agree as follows for the benefit of each other and for the equal and ratable benefit of the Holders of the 5.25% Senior Notes due 2022 (the “*Notes*”):

 

**ARTICLE 1**

 

**DEFINITIONS AND INCORPORATION BY REFERENCE**

 

Section 1.01.                          Definitions.For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:

 

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

 

“*Acquired Debt*” means, with respect to any specified Person:

 

(1)                                 Indebtedness of any other Person existing at the time such other Person is merged with or into or became a Subsidiary of such specified Person, whether or not such Indebtedness is incurred in connection with, or in contemplation of, such other Person merging with or into, or becoming a Subsidiary of, such specified Person; and

 

(2)                                 Indebtedness secured by a Lien encumbering any asset acquired by such specified Person.

 

“*Acquisition*” shall have the meaning assigned to such term in the Acquisition Agreement.

 

“*Acquisition Agreement*” means the Share and Asset Purchase Agreement, dated November 10, 2013, by and among the Parent, Novartis Vaccines and Diagnostics, Inc. and the other parties named therein.

 

“*Additional Interest*” means all additional interest, if any, then owing with respect to the Notes pursuant to the Registration Rights Agreement.

 

“*Additional Notes*” means any Notes (other than Initial Notes and Exchange Notes) issued under this Indenture in accordance with Sections 2.02 and 4.09 hereof, as part of the same series as the Initial Notes.

 

“*Affiliate*” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person.  For purposes of this definition, “*control*”, as used with respect to any Person, means the

 

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possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise; *provided*that beneficial ownership of 10% or more of the Voting Stock of a Person will be deemed to be control.  For purposes of this definition, the terms “*controlling*”, “*controlled by*” and “*under common control with*” have correlative meanings.

 

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

 

“*Applicable Premium*” means, as determined by the Issuer, with respect to any Note on any redemption date, the greater of:

 

(1)                                 1.0% of the principal amount of such Note; and

 

(2)                                 the excess, if any, of (a) the present value at such redemption date of (i) the redemption price of such Note at April 1, 2017 (such redemption price being set forth in the table appearing under Section 3.07(a) hereof), plus (ii) all required interest payments due on such Note through April 1, 2017 (excluding accrued but unpaid interest to the redemption date), computed using a discount rate equal to the Treasury Rate as of such redemption date plus 0.50%; over (b) the principal amount of such Note.

 

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

 

“*Asset Sale*” means the sale, lease (as lessor), conveyance or other disposition of any assets or rights; provided that the sale, lease, conveyance or other disposition of all or substantially all of the assets of the Parent and its Restricted Subsidiaries taken as a whole or the Issuer and its Restricted Subsidiaries taken as a whole will be governed by Section 4.18 and/or Section 5.01 and not by Section 4.12.

 

Notwithstanding the preceding, the following items will not be deemed to be Asset Sales:

 

(1)                                 any single transaction or series of related transactions that involves assets or rights having a fair market value of less than $50.0 million;

 

(2)                                 a transfer of assets or rights between or among the Parent and its Restricted Subsidiaries or between or among the Restricted Subsidiaries;

 

(3)                                 the sale, lease, conveyance or other disposition of equipment, inventory (including, but not limited to, raw materials, work-in-progress and finished goods), or other assets or rights in the ordinary course of business, or if excess, obsolete, damaged, worn-out, scrap or surplus or no longer used or useful in the conduct of business as then being conducted;

 

(4)                                 a Restricted Payment that is permitted by Section 4.10, or a Permitted Investment;

 

(5)                                 the sale, lease, conveyance or other disposition of property or assets acquired within the twelve month period prior to such sale, lease, conveyance or disposition in preparation for a sale and leaseback transaction relating to such property or assets;

 

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(6)                                 an issuance of Equity Interests by a Restricted Subsidiary to the Parent or another Restricted Subsidiary;

 

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

 

(8)                                 the license or sub-license of patents, trademarks, copyrights, know how, process technology or other intellectual property to third Persons by the Parent or a Restricted Subsidiary, so long as the Parent or such Restricted Subsidiary retain the right to use such licensed property;

 

(9)                                 the granting or assumption of a Lien permitted by Section 4.11, including a Permitted Lien;

 

(10)                          any sale or disposition of Securitization Assets to a Securitization Subsidiary in connection with a Qualified Securitization Financing;

 

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

 

(12)                          Project Dispositions;

 

(13)                          the sale or disposition of real property and related assets in the ordinary course of business in connection with relocation activities for directors, officers, members of management, employees or consultants of the Parent or any Restricted Subsidiary;

 

(14)                          the unwinding of Hedging Obligations;

 

(15)                          the disposition of Investments in joint ventures to the extent required by, or made pursuant to, buy/sell arrangements between joint venture parties set forth in joint venture agreements or similar binding agreements; provided that such disposition is at fair market value (as determined in good faith by the Parent’s Board of Directors) and any cash or Cash Equivalents received in such disposition is applied in accordance with the covenant described under the section “Repurchase at the Option of Holders—Asset Sales” in the Offering Memorandum; and

 

(16)                          any disposition of Capital Stock of a Restricted Subsidiary pursuant to an agreement or other obligation with or to a Person (other than the Parent or a Restricted Subsidiary) from whom such Restricted Subsidiary was acquired or from whom such Restricted Subsidiary acquired its business and assets (having been newly formed in connection with such acquisition), made as part of such acquisition and in each case comprising all or a portion of the consideration in respect of such sale or acquisition.

 

“*Attributable Debt*” in respect of a sale and leaseback transaction means, at the time of determination, the present value of the obligation of the lessee for net rental payments during the remaining term of the lease included in such sale and leaseback transaction, including any period for which such lease has been extended or may, at the option of the lessor, be extended.  Such present value shall be calculated using a discount rate equal to the rate of interest implicit in such transaction, determined in accordance with IFRS.

 

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“*Bankruptcy Law*” means Title 11, U.S. Code or any similar federal, state or foreign law for the relief of debtors.

 

“*Board of Directors*” means:

 

(1)                                 with respect to a corporation, the board of directors of the corporation or any committee thereof duly authorized to act on behalf of such board of directors;

 

(2)                                 with respect to a partnership, the board of directors of the general partner of the partnership;

 

(3)                                 with respect to a limited liability company, the managing member or members or any controlling committee of managing members thereof; and

 

(4)                                 with respect to any other Person, the board or committee of such Person serving a similar function.

 

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

 

“*Business Day*” means each day that is not a Saturday, Sunday or other day on which banking institutions in London or New York, New York are authorized or required by law to close.

 

“*Capital Lease Obligation*” of any Person means the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person in accordance with IFRS (or GAAP to the extent required by applicable law) and the amount of such obligations shall be the capitalized amount thereof required to be set forth on a balance sheet of such Person in accordance with IFRS (or GAAP to the extent required by applicable law).

 

“*Capital Stock*” means:

 

(1)                                 in the case of a corporation, any and all shares, including common stock and preferred stock;

 

(2)                                 in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock;

 

(3)                                 in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and

 

(4)                                 any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person but excluding

 

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from all of the foregoing any debt securities convertible into Capital Stock, whether or not such debt securities include any right of participation with Capital Stock.

 

“*Cash Equivalents*” means:

 

(1) direct obligations (or certificates representing an interest in such obligations) issued, or unconditionally guaranteed by, the government of a member state of the European Union, the United States of America, Switzerland or Canada (including, in each case, any agency or instrumentality thereof), as the case may be, the payment of which is backed by the full faith and credit of the relevant member state of the European Union or the United States of America, Switzerland or Canada, as the case may be, and which are not callable or redeemable at the option of the Parent or any of its Restricted Subsidiaries;

 

(2) overnight bank deposits, time deposit accounts, certificates of deposit, banker’s acceptances and money market deposits with maturities (and similar instruments) of 12 months or less from the date of acquisition issued by a bank or trust company which is organized under, or authorized to operate as a bank or trust company under, the laws of a member state of the European Union or of the United States of America or any state thereof, Switzerland or Canada; provided that such bank or trust company has capital, surplus and undivided profits aggregating in excess of $400.0 million (or the foreign currency equivalent thereof as of the date of such investment) and whose long-term debt is rated “A-1” or higher by Moody’s or A+ or higher by S&P or the equivalent rating category of another internationally recognized rating agency;

 

(3) repurchase obligations with a term of not more than 30 days for underlying securities of the types described in clauses (1) and (2) above entered into with any financial institution meeting the qualifications specified in clause (2) above;

 

(4) commercial paper having one of the two highest ratings obtainable from Moody’s or S&P and, in each case, maturing within one year after the date of acquisition; and

 

(5) money market funds at least 95% of the assets of which constitute Cash Equivalents of the kinds described in clauses (1) through (4) of this definition.

 

“*Change of Control*” means the occurrence of any of the following:

 

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

 

(2)                                 the adoption of any plan or proposal for the liquidation or dissolution of the Parent or the Issuer (whether or not otherwise in compliance with the provisions of this Indenture);

 

(3)                                 (a) any Person or Group (other than a Permitted Holder Group) shall be or become the owner, directly or indirectly, beneficially or of record, of shares representing more

 

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than35% of the aggregate ordinary voting power represented by the issued and outstanding Capital Stock of the Parent or (b) the Permitted Holder Group becomes the owner, directly or indirectly, beneficially or of record, of shares representing more than 50% of the aggregate ordinary voting power represented by the Parent’s issued and outstanding Capital Stock; or

 

(4)                                 the Issuer shall cease to be a Subsidiary of the Parent.

 

“*Clearstream*” means Clearstream Banking S.A. and any successor thereto.

 

“*Code*” means the Internal Revenue Code of 1986, as amended.

 

“*Consolidated Cash Flow*” means (a) Consolidated Net Income of the Parent and its Subsidiaries, plus, to the extent deducted in determining Consolidated Net Income of the Parent and its Subsidiaries the sum, without duplication, of amounts for (i) all financial results including interest expense, amortization or write-off of debt discount, other deferred financing costs, other fees and charges associated with Indebtedness, (ii) any losses on ordinary course hedging obligations or other derivative instruments entered into for the purpose of hedging interest rate risk, (iii) any foreign currency translation, transaction or exchange losses (including currency remeasurements of Indebtedness and any losses resulting from ordinary course hedging obligations or other derivative instruments for currency exchange risk), (iv) any loss of any equity-accounted investee in which the Parent or any of its Subsidiaries has a joint or minority interest, (v) expenses for taxes based on income or gain, (vi) depreciation, (vii) amortization, write-offs, write-downs, and other non-cash charges, losses and expenses, (viii) impairment of intangibles, including, without limitation, goodwill, (ix) non-recurring items (as determined in accordance with IFRS) realized other than in the ordinary course of business, without duplication, resulting in a loss, (x)  fees and expenses incurred in connection with the Transactions or, to the extent permitted hereunder, any Investment, Asset Sale, or incurrence of Indebtedness, in each case, whether or not consummated, including such fees and expenses related to any offering of any Permitted Refinancing Indebtedness, (xi) extraordinary, unusual, or non-recurring charges and expenses including transition, restructuring and “carveout” expenses and (xii)  legal, accounting, consulting, and other costs and expenses relating to the Parent’s potential or actual issuance of Equity Interests, including without limitation an initial public offering of common stock, minus (b) to the extent included in consolidated income from operations, (i) interest income, (ii) non-recurring gains (as determined in accordance with IFRS) realized other than in the ordinary course of business, (iii) income or gains on ordinary course hedging obligations or other derivative instruments entered into for the purpose of hedging interest rate risk, (iv)  foreign currency translation, transaction or exchange gains (including currency remeasurements of Indebtedness and any gains resulting from ordinary course hedging obligations or other derivative instruments for currency exchange risk), (v) any income of any equity-accounted investee in which the Parent or any of its Subsidiaries has a joint or minority interest, except to the extent of the amount of dividends or other distributions actually paid to the Parent or any Subsidiary by such Person during such period, all calculated without duplication for the Parent and its Subsidiaries on a consolidated basis.

 

For purposes of the maximum Leverage Ratio and the Secured Leverage Ratio, Consolidated Cash Flow shall be calculated pro forma for material acquisitions and disposals, such that Consolidated Cash Flow would be adjusted to (a) include net income before net interest

 

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expense, taxes, depreciation and amortization attributable to the acquired entity (or assets) prior to its becoming a Subsidiary of Parent during the relevant period, and (b) exclude net income before net interest expense, taxes, depreciation and amortization attributable to the disposed of entity (or assets) prior to its being disposed of by the Group during the relevant period.

 

“*Consolidated Net Income*” means, for any period, the total net income (or loss) attributable to the Parent and its Subsidiaries on a consolidated basis for such period taken as a single accounting period determined in conformity with IFRS (before any adjustment for profit and loss attributable to minority interests and capitalized interest) minus any after tax non-cash gains (or losses) attributable to Asset Sales or returned surplus assets of any Pension Plan.

 

“*Consolidated Net Total Debt*” means, as of any date of determination, the aggregate stated balance sheet amount of all funded Indebtedness (including Guarantees) of the Parent and the Restricted Subsidiaries determined on a consolidated basis in accordance with IFRS, (exclusive of (i) any Contingent Liability in respect of any letter of credit and (ii) obligations in respect of derivative transactions that have not been terminated) minus the amount of unrestricted cash and Cash Equivalents of the Parent and the Restricted Subsidiaries determined on a consolidated basis in accordance with IFRS.

 

“*Consolidated Senior Secured Debt*” means, as of any date of determination, Consolidated Net Total Debt minus unsecured Indebtedness of the Parent and the Restricted Subsidiaries on a consolidated basis.

 

“*Contingent Liability*” means any agreement, undertaking or arrangement by which any Person guarantees, endorses or otherwise becomes or is contingently liable upon the Indebtedness of any other Person (other than by endorsements of instruments in the course of collection). The amount of any Person’s obligation under any Contingent Liability shall (subject to any limitation with respect thereto) be deemed to be the outstanding principal amount of the Indebtedness guaranteed thereby.

 

“*Corporate Trust Office of the Trustee*” shall be at the address of the Trustee specified in Section 12.02 hereof or such other address as to which the Trustee may give notice to the Issuer.

 

“*Credit Agreement*” means that certain credit and guaranty agreement of Parent and certain of its Subsidiaries with Deutsche Bank AG New York Branch, as administrative agent, and the other parties thereto, dated on or about February 27, 2014, including any related notes, Guarantees, instruments and agreements executed in connection therewith, and, in each case, as amended, modified, renewed, refunded, replaced (whether after or upon termination or otherwise), restructured, restated or refinanced (including any agreement to extend the maturity thereof and adding additional borrowers or guarantors and including by means of sales of debt securities) in whole or in part under such agreement or agreements or any successor agreement or agreements from time to time under the same or any other agent, lender or group of lenders and including increasing the amount of available borrowings thereunder; provided that such increase is permitted under Section 4.09.

 

“*Credit Facilities*” means one or more debt facilities or agreements (including, without limitation, the Credit Agreement) or commercial paper facilities or indentures, in each case with

 

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banks or other institutional lenders providing for, or acting as initial purchasers of, revolving credit loans, term loans, notes, debentures, securities, receivables financing (including through the sale of receivables to such lenders or to special purpose entities formed to borrow from such lenders against such receivables) or letters of credit, in each case, as amended, restated, modified, renewed, refunded, replaced (whether after or upon termination or otherwise), restructured, restated or refinanced (including any agreement to extend the maturity thereof and adding additional borrowers or guarantors and including by means of sales of debt securities to institutional investors) in whole or in part from time to time and including increasing the amount of available borrowings thereunder; *provided*that such increase is permitted by Section 4.09.

 

“*Default*” means any event that is, or with the passage of time or the giving of notice or both would be, an Event of Default.

 

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

 

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

 

“*Description of Notes*” means the section entitled “Description of Notes” in the Offering Memorandum.

 

“*Designated Non-Cash Consideration*” means the fair market value of non-cash consideration received by the Parent or any Restricted Subsidiary in connection with an Asset Sale that is so designated as Designated Non-Cash Consideration pursuant to an Officer’s Certificate, setting forth the basis of such valuation, less the amount of cash or Cash Equivalents received in connection with a subsequent sale, redemption or payment of, on or with respect to, such Designated Non-Cash Consideration.

 

“*Disqualified Stock*” means any Capital Stock that, by its terms (or by the terms of any security into which it is convertible, or for which it is exchangeable, in each case at the option of the holder of the Capital Stock), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder of the Capital Stock, in whole or in part, on or prior to the date that is 91 days after the date on which the Notes mature.  Notwithstanding the preceding sentence, any Capital Stock that would constitute Disqualified Stock solely because the holders of the Capital Stock have the right to require the Parent or any of its Restricted Subsidiaries to repurchase such Capital Stock upon the occurrence of a Change of Control or an Asset Sale will not constitute Disqualified Stock if the terms of such Capital Stock provide that the Parent or such Restricted Subsidiary may not repurchase or redeem any such Capital Stock pursuant to such provisions unless such repurchase or redemption complies with Section 4.10.  The amount of Disqualified Stock deemed to be outstanding at any time for purposes of this Indenture will be the maximum amount that the Parent and the Restricted Subsidiaries may become obligated to pay upon the

 

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maturity of, or pursuant to any mandatory redemption provisions of, such Disqualified Stock, exclusive of accrued dividends.

 

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

 

“*Equity Interests*” means Capital Stock and all warrants, options, restricted stock units, performance units or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock).

 

“*ERISA*” means the Employee Retirement Income Security Act of 1974, as amended from time to time, the regulations promulgated thereunder and any successor thereto.

 

“*Euroclear*” means Euroclear Bank, S.A./N.V., as operator of the Euroclear systems, and any successor thereto.

 

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

 

“*Exchange Notes*” means Notes issued in the Exchange Offer pursuant to Section 2.06(f) hereof.

 

“*Exchange Offer*” has the meaning set forth in the Registration Rights Agreement.

 

“*Exchange Offer Registration Statement*” has the meaning set forth in the Registration Rights Agreement.

 

“*Excluded Contribution*” means net cash proceeds or property or assets received by the Parent from (1) capital contributions to the equity of the Parent (other than through the issuance of Disqualified Stock), and (2) the sale (other than to a Subsidiary of the Parent or to any management equity plan or stock option plan or any other management or employee benefit plan or agreement of the Parent) of Capital Stock (other than Disqualified Stock) of the Parent, in each case designated as Excluded Contributions pursuant to an Officer’s Certificate of the Parent.

 

“*Existing Indebtedness*” means Indebtedness of the Parent and its Restricted Subsidiaries (without duplication) in existence on the Issue Date (other than Indebtedness under the Credit Agreement or in respect of the Notes), until such amounts are repaid.

 

“*Existing Interim Loan Facility*” means that certain credit and guaranty agreement, dated as of January 3, 2014, by and among the Parent, certain subsidiaries of the Parent, as guarantors, the various lenders party thereto, Nomura Corporate Funding Americas, LLC, as administrative agent, Nomura Securities International, Inc., as sole global coordinator and Nomura Securities International, Inc., Banco Bilbao Vizcaya Argentaria, S.A. and Morgan Stanley Senior Funding, Inc., as joint lead arrangers and joint bookrunners.

 

“*Fixed Charge Coverage Ratio*” means, with respect to any specified Person for any period, the ratio of the Consolidated Cash Flow of such Person for such period to the Fixed

 

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Charges of such Person for such period.  In the event that the specified Person or any of its Restricted Subsidiaries incurs, assumes, Guarantees, repays, repurchases or redeems any Indebtedness (other than ordinary working capital borrowings) or issues, repurchases or redeems preferred stock subsequent to the commencement of the period for which the Fixed Charge Coverage Ratio is being calculated and on or prior to the date on which the event for which the calculation of the Fixed Charge Coverage Ratio is made (the “*Calculation Date*”), then the Fixed Charge Coverage Ratio will be calculated giving pro forma effect to such incurrence, assumption, Guarantee, repayment, repurchase or redemption of Indebtedness, or such issuance, repurchase or redemption of preferred stock, and the use of the proceeds therefrom (including use on the Calculation Date) as if the same had occurred at the beginning of the applicable four-quarter reference period; *provided*, *however*, that the Fixed Charges of such Person attributable to interest on any Indebtedness under a revolving credit facility computed on a pro forma basis will be computed based on the average daily balance of such Indebtedness during the four-quarter reference period and using the interest rate in effect at the end of such period (taking into account any interest rate option, swap, cap or similar agreement applicable to such Indebtedness).

 

In addition, for purposes of calculating the Fixed Charge Coverage Ratio:

 

(1)                                 acquisitions that have been made or are, on the Calculation Date, being made by the specified Person or any of its Restricted Subsidiaries, including through mergers or consolidations, or any Person or any of its Restricted Subsidiaries acquired by (including acquisitions on the Calculation Date) the specified Person or any of its Restricted Subsidiaries, and including any related financing transactions and including any increase in ownership of Restricted Subsidiaries, during the four-quarter reference period or subsequent to such reference period and on or prior to the Calculation Date will be given pro forma effect as if they had occurred on the first day of the four-quarter reference period;

 

(2)                                 the Consolidated Cash Flow attributable to discontinued operations, as determined in accordance with IFRS and operations or businesses (and ownership interests therein) disposed of prior to the Calculation Date, will be excluded; and

 

(3)                                 the Fixed Charges attributable to discontinued operations, as determined in accordance with IFRS and operations or businesses (and ownership interests therein) disposed of prior to the Calculation Date, will be excluded, but only to the extent that the obligations giving rise to such Fixed Charges will not be obligations of the specified Person or any of its Restricted Subsidiaries following the Calculation Date;

 

*provided*that whenever pro forma effect is to be given to an acquisition or a disposition, the amount of income or earnings related thereto (including the incurrence of any Indebtedness and any pro forma expense and cost reductions that have occurred or are reasonably expected to occur, regardless of whether those expense and cost reductions could then be reflected in pro forma financial statements in accordance with Regulation S-X promulgated under the Securities Act or any regulation or policy of the SEC related thereto) shall be reasonably determined in good faith by one of the Issuer’s responsible senior financial or accounting officers so long as such cost savings are actually expected to be achieved within 12 months of such acquisition or disposition.

 

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

 

(1)                                 the consolidated interest expense of such Person and its Restricted Subsidiaries for such period, whether paid or accrued (including, without limitation, amortization of original issue discount, non-cash interest payments, the interest component of all payments associated with Capital Lease Obligations, commissions, discounts and other fees and charges incurred in respect of letter of credit or bankers’ acceptance financings, and net of the effect of all payments made or received pursuant to Hedging Obligations in respect of interest rates); *plus*

 

(2)                                 the consolidated interest expense of such Person and its Restricted Subsidiaries that was capitalized during such period; *plus*

 

(3)                                 any interest actually paid on Indebtedness of another Person that is Guaranteed by such Person or one of its Restricted Subsidiaries or secured by a Lien on assets of such Person or one of its Restricted Subsidiaries, whether or not such Guarantee or Lien is called upon; *plus*

 

(4)                                 the product of (a) all dividends, whether paid or accrued and whether or not in cash, on any series of preferred stock of such Person or any of its Restricted Subsidiaries, other than (i) dividends on Equity Interests payable solely in Equity Interests of such Person (other than Disqualified Stock) or to such Person or one of its Restricted Subsidiaries and (ii) dividends on any series of preferred stock of such Person or any of its Restricted Subsidiaries where such dividends are also payable pro rata on common stock of such Person or any of its Restricted Subsidiaries, times (b) a fraction, the numerator of which is one and the denominator of which is one minus the then current combined federal, state and local statutory tax rate of such Person, expressed as a decimal, in each case, on a consolidated basis and in accordance with IFRS.

 

“*GAAP*” means generally accepted accounting principles in the United States or Spain, as applicable, which are in effect from time to time.

 

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

 

“*Global Notes*” means the global Notes in the form of Exhibit A hereto issued in accordance with Article 2 hereof.

 

“*Government Securities*” means securities that are:

 

(1) direct obligations (or certificates representing an interest in such obligations) of the government of a member state of the European Union, the United States of America or Switzerland for the timely payment of which its full faith and credit is pledged; or

 

(2) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the government of such member state of the European Union, the United States of America or Switzerland and the timely payment of which is unconditionally guaranteed as a full faith and credit obligation by the government of a member state of the European Union, the United States of America or Switzerland, which, in either case, are not callable or redeemable at the option of the issuers thereof, and shall also include a depository receipt issued by a bank

 

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(as defined in Section 3(a)(2) of the Securities Act), as custodian with respect to any such Government Securities or a specific payment of principal of or interest on any such Government Securities held by such custodian for the account of the holder of such depository receipt; provided, however, that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the Government Securities or the specific payment of principal of or interest on the Government Securities evidenced by such depository receipt.

 

“*Guarantee*” means a guarantee other than by endorsement of negotiable instruments for collection in the ordinary course of business, direct or indirect, in any manner including, without limitation, by way of a pledge of assets or through letters of credit or reimbursement agreements in respect thereof, of all or any part of any Indebtedness.

 

“*Guarantor*” means each Person that Guarantees the Notes in accordance with this Indenture.

 

“*Hedging Obligations*” means, with respect to any specified Person, the obligations of such Person under:

 

(1)                                 interest rate swap agreements (whether from fixed to floating or floating to fixed), interest rate cap agreements and interest rate collar agreements;

 

(2)                                 other agreements or arrangements designed to manage interest rates or interest rate risk; and

 

(3)                                 foreign exchange contracts, currency swap agreements or other agreements or arrangements designed to protect such Person against fluctuations in currency exchange rates or commodity prices.

 

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

 

“*IFRS*” means the International Financial Reporting Standards, as promulgated by the International Accounting Standards Board (or any successor board or agency), as in effect on the Issue Date.

 

“*Immaterial Subsidiary*” means, as of any date, any Restricted Subsidiary whose total assets, as of that date, are less than $50.0 million and whose total revenues for the most recent 12-month period do not exceed $50.0 million; *provided*that a Restricted Subsidiary will not be considered to be an Immaterial Subsidiary if it, directly or indirectly, guarantees or otherwise provides direct credit support for any Indebtedness of the Parent or any of its other Restricted Subsidiaries.

 

“*Indebtedness*” means, with respect to any specified Person, any indebtedness (excluding accrued expenses or trade payables), of such Person, whether or not contingent:

 

(1)                                 in respect of borrowed money;

 

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(2)                                 evidenced by bonds, notes, debentures or similar instruments or letters of credit (or reimbursement agreements in respect thereof);

 

(3)                                 in respect of bankers’ acceptances;

 

(4)                                 representing Capital Lease Obligations;

 

(5)                                 representing the balance deferred and unpaid of the purchase price of any property due more than six months after such property is acquired, except any such balance that constitutes an accrued expense or trade payable; or

 

(6)                                 representing the net amount of any Hedging Obligations,

 

if and to the extent any of the preceding items (other than letters of credit and Hedging Obligations) would appear as a liability upon a balance sheet of the specified Person prepared in accordance with IFRS.  In addition, the term “Indebtedness” includes all Indebtedness of others secured by a Lien on any asset of the specified Person (whether or not such Indebtedness is assumed by the specified Person) and, to the extent not otherwise included, the Guarantee by the specified Person of any Indebtedness of any other Person.

 

The amount of any Indebtedness outstanding as of any date will be (without duplication):

 

(1)                                 the accreted value of the Indebtedness, in the case of any Indebtedness issued with original issue discount;

 

(2)                                 the principal amount of the Indebtedness, together with any interest on the Indebtedness that is more than 30 days past due, in the case of any other Indebtedness; and

 

(3)                                 in respect of Indebtedness of another Person secured by a Lien on the assets of the specified Person, the lesser of:

 

(a)                                 the fair market value of such assets that are subject to such Lien at the date of determination; and

 

(b)                                 the amount of the Indebtedness of the other Person secured by such assets.

 

“*Indenture*” means this instrument, as originally executed or as it may from time to time be supplemented or amended in accordance with Article 9 hereof.

 

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

 

“*Initial Notes*” means up to $1,000,000,000 in aggregate principal amount of Notes issued under this Indenture on the date hereof.

 

“*Investment Grade Rating*” means a rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P, or an equivalent rating by any other Rating Agency.

 

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“*Investments*” means, with respect to any Person, all direct or indirect investments by such Person in other Persons (including Affiliates) in the forms of loans (including Guarantees or other obligations), advances or capital contributions (excluding commission, travel and similar advances to officers and employees made in the ordinary course of business), purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities, together with all items that are or would be classified as investments on a balance sheet prepared in accordance with IFRS (or GAAP to the extent required by applicable law) (it being understood that capital expenditures shall not be deemed to be “Investments”).  If the Parent or any of its Restricted Subsidiaries sells or otherwise disposes of any Equity Interests of any direct or indirect Subsidiary of the Parent such that, after giving effect to any such sale or disposition, such Person is no longer a Subsidiary of the Parent, the Parent will be deemed to have made an Investment on the date of any such sale or disposition equal to the fair market value of the Equity Interests of such Subsidiary not sold or disposed of in an amount determined as provided in the final paragraph of Section 4.10.  The acquisition by the Parent or any of its Restricted Subsidiaries of a Person that holds an Investment in a third Person will be deemed to be an Investment by the Parent or such Restricted Subsidiary in such third Person in an amount equal to the fair market value of the Investment held by the acquired Person in such third Person in an amount determined as provided in the final paragraph of Section 4.10.  Except as otherwise provided in this Indenture, the amount of an Investment will be determined at the time the Investment was made and without giving effect to subsequent changes in value.

 

“*Issue Date*” means March 12, 2014.

 

“*Letter of Transmittal*” means the letter of transmittal to be prepared by the Issuer and sent to all Holders of the Initial Notes for use by such Holders in connection with the Exchange Offer.

 

“*Leverage Ratio*” means the ratio as of the last day of any fiscal quarter of (a) Consolidated Net Total Debt as of such day to (b) Consolidated Cash Flow of the Parent and the Restricted Subsidiaries on a consolidated basis for the four-fiscal quarter period ending on such date.

 

“*Lien*” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention agreement, any lease in the nature thereof, any option or other agreement to sell or give a security interest in and any filing of or agreement to give any financing statement under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction.

 

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

 

“*Net Proceeds*” means the aggregate cash proceeds received by the Parent or any Restricted Subsidiary in respect of any Asset Sale (including, without limitation, any cash received upon the sale or other disposition of any non-cash consideration received in any Asset Sale), net of (i) the direct costs directly attributable to such Asset Sale, including, without limitation, legal, accounting and investment banking fees, and sales commissions, (ii) taxes paid

 

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or payable as a result of the Asset Sale, in each case, after taking into account any available tax credits or deductions and any tax sharing arrangements, (iii) amounts required to be applied to the repayment of Indebtedness secured by a Lien on the asset or assets that were the subject of such Asset Sale, (iv) any reserve for adjustment in respect of the sale price of such asset or assets established in accordance with IFRS (or GAAP to the extent required by applicable law) (unless such reserve is not used) against any liabilities associated with such Asset Sale and retained by the Parent or any Restricted Subsidiary, as the case may be, after such Asset Sale, including, without limitation, pension and other post- employment benefit liabilities, liabilities related to environmental matters and liabilities under any indemnification obligations (whether fixed or contingent) associated with such Asset Sale.

 

“*New Interim Loan Facility*” means that certain credit and guaranty agreement, dated as of February 27, 2014, by and among the Company, certain subsidiaries of the Parent party thereto, the various lenders party thereto, and Deutsche Bank AG Cayman Islands Branch, as the administrative agent.

 

“*Non-Recourse Debt*” means Indebtedness:

 

(1)                                 as to which neither the Parent nor any of the Restricted Subsidiaries (a) provides credit support of any kind (including any undertaking, agreement or instrument that would constitute Indebtedness), or (b) is directly or indirectly liable as a Guarantor or otherwise;

 

(2)                                 no default with respect to which (including any rights that the holders thereof may have to take enforcement action against an Unrestricted Subsidiary) would permit upon notice, lapse of time or both any holder of any other Indebtedness of the Parent or any of the Restricted Subsidiaries to declare a default on such other Indebtedness or cause the payment thereof to be accelerated or payable prior to its Stated Maturity; and

 

(3)                                 as to which the lenders have been notified in writing that they will not have any recourse to the stock or assets of the Parent or any of the Restricted Subsidiaries.

 

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

 

“*Obligations*” means any principal, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities payable under the documentation governing any Indebtedness.

 

“*Offering Memorandum*” means that certain offering memorandum, dated as of March 5, 2014, relating to the offering and sale of the Notes by the Issuer.

 

“*Officer*” means the Chief Executive Officer, the President, the Chief Financial Officer, any Vice President, or any other officer authorized by actions of the Board of Directors of the Parent, or, in the case of the Issuer, any duly elected director (including any alternate director) or other person authorized by actions of the Board of Directors of the Issuer.

 

“*Officer’s Certificate*” means a certificate, in form and substance reasonably satisfactory to the Trustee, signed by an Officer of the Parent or the Issuer, as appropriate, and delivered to the Trustee.  The Officer signing an Officer’s Certificate given pursuant to Section 4.04 shall be

 

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the principal executive officer, principal financial officer or the principal accounting officer of the Parent or the Issuer.

 

“*Opinion of Counsel*” means a written opinion, in form and substance reasonably satisfactory to the Trustee, from legal counsel who is acceptable to the Trustee and which meets the requirements of Section 12.05 hereof.  The counsel may be an employee of or counsel to the Parent.

 

“*Parent*” means Grifols, S.A.

 

“*Participant*” means, with respect to the Depositary, Euroclear or Clearstream, a Person who has an account with the Depositary, Euroclear or Clearstream, respectively, and, with respect to The Depository Trust Company, shall include Euroclear and Clearstream.

 

“*Pension Plan*” means any Employee Benefit Plan, other than a Multiemployer Plan, which is subject to Section 412 or Section 430 of the Internal Revenue Code or Section 302 or Section 303 of ERISA.

 

“*Permitted Business*” means healthcare products and services (including the lines of business conducted by the Parent, Novartis Vaccines and Diagnostics (HK) Limited and the Restricted Subsidiaries on the date of the indenture) and any businesses ancillary, complementary or reasonably related thereto.

 

“*Permitted Holder Group*” means any group comprised solely of the Grifols family, holding directly or indirectly (individually or together, the “*Existing Holders*”), or (ii) a person or group of related persons for purposes of Section 13(d) of the Exchange Act that includes the Existing Holders where the Existing Holders control (whether through exercise of voting rights, by contract or otherwise) the Parent.

 

“*Permitted Investments*” means:

 

(1)                                 any Investment in the Parent or in a Restricted Subsidiary;

 

(2)                                 any Investment in cash and Cash Equivalents and Investments that were Cash Equivalents when made;

 

(3)                                 loans and advances to employees, officers, consultants and directors of the Parent or a Restricted Subsidiary in the ordinary course of business for bona fide business purposes not in excess of $20.0 million at any one time outstanding;

 

(4)                                 any Investment by the Parent or a Restricted Subsidiary in a Person, if as a result of such Investment:

 

(a)                                 such Person becomes a Restricted Subsidiary; or

 

(b)                                 such Person is merged, consolidated or amalgamated with or into, or transfers or conveys substantially all of its assets to, or is liquidated into, the Parent or a Restricted Subsidiary;

 

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(5)                                 any Investment made as a result of the receipt of non-cash consideration from an Asset Sale that was made pursuant to and in compliance with Section 4.12;

 

(6)                                 any acquisition of assets or Capital Stock solely in exchange for the issuance of the Equity Interests (other than Disqualified Stock) of the Parent;

 

(7)                                 any Investments received (A) in compromise of obligations of trade creditors or customers that were incurred in the ordinary course of business of the Parent or the Restricted Subsidiaries, including pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency or other reorganization of any trade creditor or customer or (B) in resolution of litigation, arbitration or other disputes or (C) as a result of foreclosure, perfection or enforcement of any Lien;

 

(8)                                 Hedging Obligations;

 

(9)                                 any Investments in one or more Permitted Joint Ventures or Unrestricted Subsidiaries, in each case so long as the Leverage Ratio, at the time of each such Investment, after giving pro forma effect to such Investment, would not be greater than 3.50 to 1.00; provided, however, that if any Investment pursuant to this clause (9) is made in any Person that is not a Restricted Subsidiary at the date of the making of such Investment and such Person becomes a Restricted Subsidiary after such date, such Investment shall thereafter be deemed to have been made pursuant to clause (1) above and shall cease to have been made pursuant to this clause (9) for so long as such Person continues to be a Restricted Subsidiary;

 

(10)                          payroll, travel, moving and similar advances to cover matters that are expected at the time of such advances ultimately to be treated as expenses for accounting purposes and that are made in the ordinary course of business;

 

(11)                          repurchases of the Notes;

 

(12)                          notes, chattel paper and accounts receivable owing to the Parent or the Restricted Subsidiaries created or acquired in the ordinary course of business (including concessionary trade terms the Issuer deems reasonable under the circumstances);

 

(13)                          Investments in existence or made pursuant to legally binding written commitments in existence on the Issue Date, and any extension, modification, replacement, refunding, refinancing or renewal thereof in whole or in part;

 

(14)                          Guarantees of Indebtedness issued in accordance with Section 4.09, and performance or completion Guarantees in the ordinary course of business;

 

(15)                          Investments of a Restricted Subsidiary acquired after the Issue Date, or of an entity acquired by, merged into, amalgamated with, or consolidated with a Restricted Subsidiary in a transaction that is not prohibited by Article 5 of this Indenture after the Issue Date, to the extent that such Investments were not made in contemplation of such acquisition, merger, amalgamation or consolidation and were in existence on the date of such acquisition, merger, amalgamation or consolidation;

 

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(16)                          Investments consisting of purchases and acquisitions of inventory, supplies, material or equipment, including pre- payments therefor;

 

(17)                          deposits, prepayments and other credits to suppliers in the ordinary course of business consistent with past practice;

 

(18)                          Investments representing amounts held for employees of the Parent and the Restricted Subsidiaries under deferred compensation plans; *provided*that the amount of such Investments (excluding income earned thereon) shall not exceed the amount otherwise payable to such employees the payment of which was deferred under such plan and any amounts matched by the Parent or the Restricted Subsidiaries under such plan;

 

(19)                          Investments consisting of the licensing or contribution of intellectual property pursuant to development, marketing or manufacturing agreements or arrangements or similar agreements or arrangements with other Persons in the ordinary course of business;

 

(20)                          any Investment in exchange for, or out of the net proceeds of the substantially concurrent sale (other than to a Subsidiary of the Parent or a Restricted Subsidiary or an employee stock ownership plan or similar trust) of Capital Stock (other than Disqualified Stock) of the Parent; *provided*that the amount of any net cash proceeds that are utilized for such Investment will be excluded from clause(d)(c)(ii) of the first paragraph of Section 4.10;

 

(21)                          Investments consisting of advances or loans to Persons building, developing or overseeing the construction of plasma collection centers expected to supply principally the Parent or the Restricted Subsidiaries in the ordinary course of business and consistent with past practice;

 

(22)                          Investments relating to any Securitization Subsidiary of the Parent or any Restricted Subsidiary organized in connection with a Qualified Securitization Financing that, in the good faith determination of the Board of Directors of the Parent, are necessary or advisable to effect such Qualified Securitization Financing;

 

(23)                          Investments in the ordinary course of business consisting of UCC Article 3 endorsements for collection or deposit and UCC Article 4 customary trade arrangements with customers consistent with past practices; and

 

(24)                          other Investments in any Person having an aggregate fair market value (measured on the date each such Investment was made and without giving effect to subsequent changes in value), when taken together with all other Investments made pursuant to this clause (24) that are at the time outstanding, not to exceed the greater of (i) $250 million and (ii) 2.5% of Total Assets.

 

“*Permitted Joint Venture*” means any joint venture that the Parent or any Restricted Subsidiary is a party to that is engaged in a Permitted Business.

 

“*Permitted Liens*” means:

 

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(1)                                 Liens to secure Obligations in respect of any Indebtedness incurred under Section 4.09(b)(i);

 

(2)                                 Liens securing Indebtedness incurred under Section 4.09(a); *provided* that at the time of incurrence and after giving pro forma effect to the incurrence of such Indebtedness and the application of the proceeds therefrom on such date, the Secured Leverage Ratio would not exceed 4.5 to 1.00;

 

(3)                                 Liens in favor of the Parent or any Restricted Subsidiary;

 

(4)                                 Liens and deposits to secure the performance of bids, trade contracts, leases, statutory obligations, letters of credit or trade guarantees, surety or appeal bonds, performance bonds or other obligations of a like nature, in each case in the ordinary course of business;

 

(5)                                 Liens to secure Indebtedness (including Capital Lease Obligations) permitted by clause (iv) of Section 4.09(b) covering only the assets acquired, or financed, with such Indebtedness;

 

(6)                                 Liens existing on the date of this Indenture and any extensions, renewals or replacements thereof;

 

(7)                                 Liens for Taxes, assessments or governmental charges or claims that are not yet delinquent or that are being contested in good faith by appropriate proceedings promptly instituted and diligently concluded; *provided*that any reserve or other appropriate provision as is required in conformity with IFRS (or GAAP to the extent required by applicable law), has been made therefor and Liens for Taxes assessed on real estate assets that are not delinquent;

 

(8)                                 Liens, pledges or deposits in the ordinary course of business to secure workers’ compensation claims, self-retention or self-insurance obligations, unemployment insurance, performance, bid, release, appeal, surety and similar bonds and related reimbursement obligations and completion guarantees provided or incurred by the Parent and the Restricted Subsidiaries in the ordinary course of business, lease obligations or non-delinquent obligations under social security laws and obligations in connection with participation in government insurance, benefits, reimbursement or other programs or other similar requirements, return of money bonds and other similar obligations, including obligations to secure health and safety and environmental obligations (exclusive of obligations for the payment of borrowed money or Indebtedness);

 

(9)                                 Liens imposed by law, such as carrier’s, supplier’s, workmen’s, warehousemen’s, landlord’s, materialmen’s, repairmen’s and mechanic’s Liens and other similar Liens arising in the ordinary course of business or are being contested in good faith;

 

(10)                          easements, rights-of-way, restrictions, encroachments, minor defects or irregularities in title and other similar charges or encumbrances not interfering in any material respect with the ordinary conduct of the Parent’s and its Restricted Subsidiaries business or assets taken as a whole;

 

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(11)                          Liens securing Hedging Obligations so long as the related Indebtedness is, and is permitted to be under this Indenture, secured by the same property securing the Hedging Obligations;

 

(12)                          Liens securing Permitted Refinancing Indebtedness, *provided* that such Liens do not extend to any property or assets other than the property or assets that secure the Indebtedness being refinanced;

 

(13)                          Liens created for the benefit of or securing the Notes and the Guarantees;

 

(14)                          Liens arising from judgments in circumstances not constituting an Event of Default as described in Article 6 hereof;

 

(15)                          Liens arising out of conditional sale, title retention, consignment or similar arrangements for sale of goods in the ordinary course of business;

 

(16)                          Liens in favor of customs or revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods;

 

(17)                          bankers’ Liens, rights of setoff or similar rights and remedies as to deposit accounts;

 

(18)                          Liens on 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;

 

(19)                          Liens on insurance policies and proceeds thereof, or other deposits, to secure insurance premium financings in the ordinary course of business;

 

(20)                          Liens on accounts receivable and related assets of a Securitization Subsidiary incurred in connection with a Qualified Securitization Financing;

 

(21)                          Liens on property (including Capital Stock) of a Person existing at the time such Person becomes a Restricted Subsidiary of the Parent or is merged with or into or consolidated with the Parent or any of its Restricted Subsidiaries; *provided*that such Liens were in existence prior to the contemplation of such Person becoming a Restricted Subsidiary of the Parent or such merger or consolidation, were not incurred in contemplation thereof and do not extend to any assets other than those of the Person that becomes a Restricted Subsidiary of the Parent or is merged with or into or consolidated with the Parent or any of its Restricted Subsidiaries;

 

(22)                          filing of Uniform Commercial Code financing statements under U.S. state law (or similar filings under applicable jurisdiction) in connection with operating leases in the ordinary course of business;

 

(23)                          operating leases, licenses, subleases and sublicenses of assets (including real property and intellectual property rights), in each case entered into in the ordinary course of business;

 

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(24)                          Liens (including put and call arrangements) on Capital Stock or other securities of any Unrestricted Subsidiary that secure Indebtedness of such Unrestricted Subsidiary;

 

(25)                          limited recourse Liens in respect of the ownership interests in, or assets owned by, any joint ventures which are not Restricted Subsidiaries securing obligations of such joint ventures;

 

(26)                          Liens incurred by the Parent or any Restricted Subsidiary with respect to obligations that do not exceed the greater of (i) $500 million and (ii) 5.0% of Total Assets at any one time outstanding;

 

(27)                          Liens on the assets of any Restricted Subsidiary (other than the Issuer or any Guarantor) to secure Indebtedness of such Restricted Subsidiary;

 

(28)                          Liens solely on cash earnest money deposits made by the Parent or any Restricted Subsidiary in connection with any letter-of-intent or purchase agreement entered into in connection with any Investment permitted under this Indenture;

 

(29)                          any interest of a lessor or sublessor under any lease of real estate permitted hereunder and covering only the assets so leased and any Liens encumbering such lessor’s or sublessor’s interest or title; and

 

(30)                          any zoning or similar law or right reserved in any governmental office or agency to control or regulate the use of any real property.

 

“*Permitted Refinancing Indebtedness*” means any Indebtedness of the Parent or any of the Restricted Subsidiaries issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease, refund or discharge other Indebtedness of the Parent or any of the Restricted Subsidiaries (other than intercompany Indebtedness); *provided*that:

 

(1)                                 the principal amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness does not exceed (A) the principal amount (or accreted value, if applicable) of the Indebtedness extended, refinanced, renewed, replaced, defeased, refunded or discharged, plus (B) all accrued interest on the Indebtedness, plus (C) the amount of all fees, expenses and premiums incurred in connection therewith;

 

(2)                                 such Permitted Refinancing Indebtedness has a final maturity date later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being extended, refinanced, renewed, replaced, defeased, refunded or discharged;

 

(3)                                 if the Indebtedness being extended, refinanced, renewed, replaced, defeased, refunded or discharged is subordinated in right of payment to the Notes, such Permitted Refinancing Indebtedness is subordinated in right of payment to, the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, defeased, refunded or discharged; and

 

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(4)                                 such Indebtedness is incurred either by the Parent, a Guarantor or by the Restricted Subsidiary who is the obligor on the Indebtedness being extended, refinanced, renewed, replaced, defeased, refunded or discharged.

 

“*Person*” means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited liability company or government or other entity.

 

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

 

“*Project Disposition*” means any sale, assignment, conveyance, transfer or other disposition of facilities under construction by the Parent and its Restricted Subsidiaries as of the Issue Date (including the real estate related thereto) which are intended by the Parent upon completion of construction to be repurchased or leased by the Parent or one of its Restricted Subsidiaries or any business related, ancillary or complementary thereto; *provided*, that the consideration received for such assets shall be cash in an amount at least equal to the book value.

 

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

 

“*Qualified Equity Offering*” means any public or any private offering of Capital Stock (excluding Disqualified Stock) of the Parent.

 

“*Qualified Securitization Financing*” means any transaction or series of transactions entered into by the Parent or any of its Restricted Subsidiaries pursuant to which the Parent or such Restricted Subsidiary sells, conveys, contributes, assigns, grants an interest in or otherwise transfers to a Securitization Subsidiary, Securitization Assets (and/or grants a security interest in such Securitization Assets transferred or purported to be transferred to such Securitization Subsidiary), and which Securitization Subsidiary funds the acquisition of such Securitization Assets (a) with cash, (b) through the issuance to the Parent’s or such Seller’s Retained Interests or an increase in the Parent’s or such Seller’s Retained Interests, and/or (c) with proceeds from the sale, pledge or collection of Securitization Assets.

 

“*Rating Agencies*” means Moody’s and S&P or if Moody’s or S&P or both shall not make a rating on the Notes publicly available, an internationally recognized statistical rating agency or agencies, as the case may be, selected by the Issuer which shall be substituted for Moody’s or S&P or both, as the case may be.

 

“*Registration Rights Agreement*” means the Registration Rights Agreement dated as of March 12, 2014 between the Issuer, the Guarantors and the Initial Purchasers named therein, as such agreement may be amended, modified or supplemented from time to time and, with respect to any Additional Notes, one or more registration rights agreements between the Issuer and the other parties thereto, as such agreement(s) may be amended, modified or supplemented from time to time, relating to rights given by the Issuer to the purchasers of Additional Notes to register such Additional Notes under the Securities Act.

 

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

 

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

 

“*Replacement Assets*” means any properties or assets used or useful in a Permitted Business.

 

“*Responsible Officer*” when used with respect to the Trustee, means any officer within the Corporate Trust Department of the Trustee (or any successor group of the Trustee), including any vice president, assistant secretary, senior associate, associate, trust officer or any other officer of the Trustee who customarily performs functions similar to those performed by the Persons who at the time shall be such officers, respectively, or any officer of the Corporate Trust Department of the Trustee with direct responsibility for the administration of this Indenture and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his or her knowledge of and familiarity with the particular subject.

 

“*Restricted Definitive Note*” means one or more Definitive Notes bearing the Private Placement Legend.

 

“*Restricted Global Notes*” means the 144A Global Note and the Regulation S Global Note.

 

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

 

“*Restricted Subsidiary*” means, at any time, each direct and indirect Subsidiary of the Parent (including, without limitation, the Issuer) that is not then an Unrestricted Subsidiary; *provided*, *however*, that upon the occurrence of an Unrestricted Subsidiary ceasing to be an Unrestricted Subsidiary, such Subsidiary shall be included in the definition of “Restricted Subsidiary”.

 

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

 

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

 

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

 

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

 

“*S&P*” means Standard & Poor’s Rating Services, a division of The McGraw-Hill Companies, Inc., or any successors to its rating agency business.

 

“*SEC*” means the Securities and Exchange Commission.

 

“*Secured Leverage Ratio*” means the ratio as of the last day of any fiscal quarter of (a) Consolidated Senior Secured Debt as of such day to (b) Consolidated Cash Flow of the Parent and the Restricted Subsidiaries on a consolidated basis for the four-fiscal quarter period ending on such date.

 

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

 

“*Securitization Assets*” means any accounts receivable owed to the Parent or any of its Subsidiaries (whether now existing or arising or acquired in the future) arising in the ordinary course of business from the sale of goods or services, all collateral securing such accounts receivable, all contracts and contract rights and all guarantees or other obligations in respect of such accounts receivable, all proceeds of such accounts receivable and other assets (including contract rights) which are of the type customarily transferred or in respect of which security interests are customarily granted in connection with securitizations of accounts receivable and which are sold, conveyed, contributed, assigned, pledged or otherwise transferred by such Parent or any of its Subsidiaries to a Securitization Subsidiary.

 

“*Securitization Repurchase Obligation*” means any obligation of a seller of Securitization Assets in a Qualified Securitization Financing to repurchase Securitization Assets arising as a result of a breach of a representation, warranty or covenant with respect to such Securitization Assets, including as a result of a receivable or portion thereof becoming subject to any asserted defense, dispute, off set, counterclaim or other dilution of any kind as a result of any action taken by, any failure to take action by or any other event relating to the seller, but in each case, not as a result of such receivable being or becoming uncollectible for credit reasons.

 

“*Securitization Subsidiary*” means a Restricted Subsidiary of the Parent that engages in no activities other than in connection with the acquisition and/or financing of Securitization Assets, all proceeds thereof and all rights (contingent and other), collateral and other assets relating thereto, and any business or activities incidental or related to such business, and which is designated by the Board of Directors of the Parent (or a duly authorized committee thereof) or such other Person (as provided below) as a Securitization Subsidiary and (a) no portion of the Indebtedness or any other obligations (contingent or otherwise) of which (i) is guaranteed by the Parent or any of its Subsidiaries, other than another Securitization Subsidiary (excluding guarantees of obligations (other than the principal of, and interest on, Indebtedness) pursuant to Standard Securitization Undertakings), (ii) is recourse to or obligates the Parent or any of its Subsidiaries, other than another Securitization Subsidiary, in any way other than pursuant to Standard Securitization Undertakings or (iii) subjects any property or asset (other than Securitization Assets) of the Parent or any of its Subsidiaries, other than another Securitization Subsidiary, directly or indirectly, contingently or otherwise, to the satisfaction thereof, other than pursuant to Standard Securitization Undertakings, (b) with which none of the Parent nor any of its Subsidiaries, other than another Securitization Subsidiary, has any material contract, agreement, arrangement or understanding other than (i) the applicable receivables purchase agreements and related agreements, in each case, having reasonably customary terms, or (ii) on terms which the Parent reasonably believes to be no less favorable to the Parent or the applicable Subsidiary than those that might be obtained at the time from Persons that are not Affiliates of the Parent or any of its Subsidiaries and (c) to which neither the Parent nor any of its Subsidiaries other than another Securitization Subsidiary, has any obligation to maintain or preserve such entity’s financial condition or cause such entity to achieve certain levels of operating results.  Any such designation by the Board of Directors of the Parent (or a duly authorized committee thereof) or such other Person shall be evidenced to the trustee by delivery to the trustee of a certified copy of the resolution of the Board of Directors of the Parent or such other Person

 

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giving effect to such designation and a certificate executed by an authorized officer certifying that such designation complied with the foregoing conditions.

 

“*Seller’s Retained Interests*” means the Indebtedness or Equity Interests held by the Parent or any of its Subsidiaries in a Securitization Subsidiary to which Securitization Assets have been transferred, including any such debt or equity received as consideration for or as a portion of the purchase price for the Securitization Assets transferred, or any other instrument through the Parent or such Subsidiary has rights to or receives distributions in respect of any residual or excess interest in the Securitization Assets.

 

“*Shelf Registration Statement*” means the Shelf Registration Statement as defined in the Registration Rights Agreement.

 

“*Significant Subsidiary*” means any Subsidiary that would be a “significant subsidiary” as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as in effect on the Issue Date.

 

“*Standard Securitization Undertakings*” means representations, warranties, covenants, Securitization Repurchase Obligations and indemnities entered into by the Parent or any of its Subsidiaries that are reasonably customary in accounts receivable securitization transactions.

 

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

 

“*Subordinated Indebtedness*” means all Indebtedness (whether outstanding on the Issue Date or thereafter incurred) that is subordinated or junior in right of payment to the Notes pursuant to a written agreement, executed by the Person to whom such Indebtedness is owed, to that effect.

 

“*Subsidiary*” means with respect to any Person, any corporation, partnership, limited liability company, association, joint venture or other business entity of which (x) any Person has the power to direct or cause the direction of the management or policies, or the dismissal or appointment of the management, of a Person, whether through the ability to exercise voting power, by contract or otherwise and the accounts of which are required to be consolidated with those of such Person in such Person’s consolidated financial statements in accordance with IFRS or (y) more than 50.0% of the total voting power of shares of stock or other ownership interests entitled (without regard to the occurrence of any contingency) to vote in the election of the Person or Persons (whether directors, managers, trustees or other Persons performing similar functions) having the power to direct or cause the direction of the management and policies thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof. Unless otherwise specified herein, all references to any “Subsidiary” shall refer to a Subsidiary of the Parent.

 

“*Tax*” means any tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and any other liabilities related thereto).

 

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

 

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

 

“*Total Assets*” means the total consolidated assets of the Parent and the Restricted Subsidiaries, as shown on the most recent internal balance sheet of the Parent prepared on a consolidated basis (excluding Unrestricted Subsidiaries) in accordance with IFRS.

 

“*Transactions*” means (i) the Acquisition, the entry into the Existing Interim Loan Facility and the incurrence of loans thereunder, (ii) the repayment of certain of Parent’s and the Restricted Subsidiaries’ existing Indebtedness in connection with the Acquisition, (iii) the entry into the Credit Agreement and the New Interim Loan Facility and the incurrence of loans thereunder and the repayment of certain of Parent’s and the Restricted Subsidiaries’ existing Indebtedness in connection therewith and (iv) the issuance and sale of the notes offered hereby and the other transactions in connection therewith described under the section “Use of Proceeds” in the Offering Memorandum.

 

“*Treasury Rate*” means, as obtained by the Issuer, as of any redemption date, the yield to maturity as of such redemption date of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) that has become publicly available at least two Business Days prior to the redemption date (or, if such Statistical Release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from the redemption date to April 1, 2017; *provided*, *however*, that if the period from the redemption date to April 1, 2017 is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year will be used.

 

“*Trustee*” means the Person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean such successor Trustee.

 

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

 

“*Unrestricted Definitive Notes*” means one or more Definitive Notes that do not and are not required to bear the Private Placement Legend.

 

“*Unrestricted Global Notes*” means one or more Global Notes, in the form of Exhibit A attached hereto, that do not and are not required to bear the Private Placement Legend and are deposited with and registered in the name of the Depositary or its nominee.

 

“*Unrestricted Subsidiary*” means any Subsidiary (or any successor to any of them) that is designated by the Board of Directors of the Issuer as an Unrestricted Subsidiary pursuant to a Board Resolution, but only to the extent that such Subsidiary:

 

(1)                                 has no Indebtedness other than Non-Recourse Debt;

 

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(2)                                 except as permitted pursuant to Section 4.14, is not party to any agreement, contract, arrangement or understanding with the Parent or any of its Restricted Subsidiaries unless the terms of any such agreement, contract, arrangement or understanding are no less favorable to the Parent or such Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates of the Parent and/or the Restricted Subsidiaries;

 

(3)                                 is a Person with respect to which neither the Parent nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve such Person’s financial condition or to cause such Person to achieve any specified levels of operating results;

 

(4)                                 has not Guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Parent or any Restricted Subsidiary; and

 

(5)                                 has at least one director on the Board of Directors of the Issuer that is not a director or executive officer the Parent or any Restricted Subsidiary and has at least one executive officer that is not a director or executive officer of the Parent or any Restricted Subsidiary.

 

Any designation of a Subsidiary as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of the resolution of the Board of Directors of the Parent giving effect to such designation and an Officer’s Certificate and Opinion of Counsel certifying that such designation complied with the preceding conditions and was permitted by Section 4.10 hereof.  If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09, the Issuer will be in Default of Section 4.09.  The Board of Directors of the Parent may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary; *provided*that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.09, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; (2) no Default or Event of Default would be in existence following such designation; and (3) such Subsidiary executes and delivers to the Trustee a supplemental indenture providing for a Guarantee.

 

“*Voting Stock*” of any Person as of any date means the Capital Stock of such Person that is at the time entitled to vote in the election of the Board of Directors of such Person.

 

“*Weighted Average Life to Maturity*” means, when applied to any Indebtedness at any date, the number of years obtained by dividing:

 

(1)                                 the sum of the products obtained by multiplying (a) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect of the Indebtedness, by (b) the number of years

 

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(calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by

 

(2)                                 the then outstanding principal amount of such Indebtedness.

 

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Section 1.02.                          Other Definitions.

 
| **Term**                                | ** ** | **Defined in Section** |
|-----------------------------------------|------------|----------------------------------|
| “Additional   Amounts”        |       | 4.21                             |
| “Affiliate   Transaction”     |       | 4.14                             |
| “Alternate   Offer”           |       | 4.18                             |
| “Asset   Sale Offer”          |       | 3.09                             |
| “Authentication   Order”      |       | 2.02                             |
| “Benefited   Party”           |       | 10.01                            |
| “Change   of Control Offer”   |       | 4.18                             |
| “Change   of Control Payment” |       | 4.18                             |
| “Covenant   Defeasance”       |       | 8.03                             |
| “Covenant   Suspension Event” |       | 4.20                             |
| “DTC”                         |       | 2.03                             |
| “Existing   Holders”          |       | 1.01 (Permitted Holder Group)    |
| “Event   of Default”          |       | 6.01                             |
| “Excess   Proceeds”           |       | 4.12                             |
| “incur”                       |       | 4.09                             |
| “Legal   Defeasance”          |       | 8.02                             |
| “losses”                      |       | 7.07                             |
| “non-U.S. Guarantor”     |       | 4.21                             |
| “Notes”                       |       | Preamble                         |
| “Offer   Amount”              |       | 3.09                             |
| “Offer   Period”              |       | 3.09                             |
| “Paying   Agent”              |       | 2.03                             |
| “Payment   Default”           |       | 6.01                             |
| “Permitted   Debt”            |       | 4.09                             |
| “Primary   Lien”              |       | 4.11                             |
| “Purchase   Date”             |       | 3.09                             |
| “Registrar”                   |       | 2.03                             |
| “Restricted   Payments”       |       | 4.10                             |
| “Reversion   Date”            |       | 4.20                             |
| “Security   Register”         |       | 4.18                             |
| “Suspended   Covenant”        |       | 4.20                             |
| “Suspension   Date”           |       | 4.20                             |
| “Taxing   Jurisdiction”       |       | 4.21                             |

 

Section 1.03.                          Incorporation by Reference of Trust Indenture Act.

 

(a)                                 Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture.

 

(b)                                 The following TIA terms used in this Indenture have the following meanings:

 

“*indenture securities*” means the Notes;

 

“*indenture security holder*” means a Holder of a Note;

 

“*indenture to be qualified*” means this Indenture;

 

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“*indenture trustee*” or “*institutional trustee*” means the Trustee; and

 

“*obligor*” on the Notes means the Issuer and any successor obligor upon the Notes.

 

(c)                                  All other terms used in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by SEC rule under the TIA have the meanings so assigned to them.

 

Section 1.04.                          Rules of Construction.

 

(a)                                 Unless the context otherwise requires:

 

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

 

(ii)                                  an accounting term not otherwise defined herein has the meaning assigned to it in accordance with IFRS (or GAAP to the extent required by applicable law);

 

(iii)                               “or” is not exclusive;

 

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

 

(v)                                 all references in this instrument to designated “Articles”, “Sections” and other subdivisions are to the designated Articles, Sections and subdivisions of this instrument as originally executed;

 

(vi)                              the words “herein”, “hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision.

 

(vii)                           “including” means “including without limitation”;

 

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

 

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

 

**ARTICLE 2**

 

**THE NOTES**

 

Section 2.01.                          Form and Dating.

 

(a)                                 ***General*****. **The Notes are hereby authorized in an initial principal amount of $1,000,000,000.  The Notes and the Trustee’s certificate of authentication shall be substantially in the form of Exhibit A hereto, which is hereby incorporated in and expressly made part of this Indenture.  The Notes may have notations, legends or endorsements required by law, stock exchange rule or usage.  Each Note shall be dated the date of its authentication.  The Notes shall

 

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be in denominations of $200,000 and integral multiples of $1,000 in excess thereof.  The terms and provisions contained in the Notes shall constitute, and are hereby expressly made, a part of this Indenture and the Issuer and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby.  However, to the extent any provision of any Note conflicts with the express provisions of this Indenture, the provisions of this Indenture shall govern and be controlling.

 

The terms and provision of the Guarantees will constitute, and shall expressly be made, a part of this Indenture and the Issuer, the Parent and the Guarantors and the Trustee, by their execution and delivery of this Indenture, shall expressly agree to such terms and provisions and to be bound hereby.  Any reference to a Guarantor herein shall be deemed to be a reference thereto solely from and after the date of its execution and delivery of a supplemental indenture hereto in the form of Exhibit F hereto.

 

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

 

(c)                                  ***Book****-**Entry Provisions***.  This Section 2.01(c) shall only apply to Global Notes deposited with the Trustee, as custodian for the Depositary.  Participants and Indirect Participants shall have no rights under this Indenture with respect to any Global Note held on their behalf by the Depositary or by the Trustee as the custodian for the Depositary or under such Global Note, and the Depositary shall be treated by the Issuer, the Trustee and any Agent of the Issuer or the Trustee as the absolute owner of such Global Note for all purposes whatsoever.  Notwithstanding the foregoing, nothing herein shall prevent the Issuer, the Trustee or any Agent of the Issuer or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and its Participants or Indirect Participants, the Applicable Procedures or the operation of customary practices of the Depositary governing the exercise of the rights of a holder of a beneficial interest in any Global Note.

 

Section 2.02.                          Execution and Authentication.

 

(a)                                 One Officer of the Issuer shall sign the Notes by manual or facsimile signature.

 

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

 

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(c)                                  A Note shall not be valid until authenticated by the manual signature of the Trustee.  The signature shall be conclusive evidence that the Note has been authenticated under this Indenture.

 

(d)                                 The Trustee shall, upon a written order of the Issuer signed by one Officer (an “*Authentication Order*”), authenticate Notes for original issue.

 

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

 

(f)                                   The Issuer may issue Additional Notes from time to time after the offering of the Initial Notes.  The Initial Notes, the Exchange Notes and any Additional Notes subsequently issued under this Indenture shall be treated as a single class for all purposes under this Indenture, including, without limitation, waivers, amendments, redemptions and offers to purchase*; provided*, *however*, that any Additional Notes may not have the same CUSIP number as the Notes unless  either (i) the Additional Notes are treated as part of the same issue for U.S. federal income tax purposes or (ii) both the Notes and the Additional Notes are issued with no (or less than a *de minimis* amount of) original issue discount for U.S. federal income tax purposes.

 

Section 2.03.                          Registrar and Paying Agent.

 

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

 

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

 

(c)                                  The Issuer initially appoints the Trustee to act as the Registrar and Paying Agent.

 

Section 2.04.                          Paying Agent to Hold Money in Trust.The Issuer shall require each Paying Agent other than the Trustee to agree in writing that the Paying Agent shall hold in trust for the benefit of Holders or the Trustee all money held by the Paying Agent for the payment of principal, premium, if any, or interest and Additional Interest, if any, on the Notes, and shall notify the Trustee of any default by the Issuer in making any such payment.  While any such Default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee.  The Issuer at any time may require a Paying Agent to pay all money held by it to the

 

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Trustee.  Upon payment over to the Trustee, the Paying Agent (if other than the Parent or a Subsidiary of the Parent) shall have no further liability for the money.  If the Parent or a Subsidiary the Parent acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders all money held by it as Paying Agent.  Upon any bankruptcy or reorganization proceedings relating to the Issuer, the Trustee shall serve as Paying Agent for the Notes.

 

Section 2.05.                          Holder Lists.

 

The Registrar shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of all Holders and shall otherwise comply with TIA § 312(a).  If the Trustee is not the Registrar, the Issuer shall furnish to the Trustee at least seven Business Days before each interest payment date and at such other times as the Trustee may request in writing, a list in such form and as of such date or such shorter time as the Trustee may allow, as the Trustee may reasonably require of the names and addresses of the Holders and the Issuer shall otherwise comply with TIA § 312(a).

 

Section 2.06.                          Transfer and Exchange.

 

(a)                                 ***Transfer and Exchange of Global Notes***.  A Global Note may not be transferred as a whole except by the Depositary to a nominee of the Depositary, by a nominee of the Depositary to the Depositary or to another nominee of the Depositary, or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary.  All Global Notes will be exchanged by the Issuer for Definitive Notes if (1) the Issuer delivers to the Trustee notice from the Depositary that it is unwilling or unable to continue to act as Depositary or that it is no longer a clearing agency registered under the Exchange Act and, in either case, a successor Depositary is not appointed by the Issuer within 90 days after the date of such notice from the Depositary, (2) the Issuer in its sole discretion and subject to the procedures of the Depositary determines that the Global Notes (in whole but not in part) should be exchanged for Definitive Notes and deliver a written notice to such effect to the Trustee, or (3) there shall have occurred and be continuing an Event of Default with respect to such Global Note.  Upon the occurrence of any of the preceding events in (1), (2) or (3) above, Definitive Notes shall be issued in denominations of $200,000 or integral multiples of $1,000 in excess thereof and in such names as the Depositary shall instruct the Trustee.  Global Notes also may be exchanged or replaced, in whole or in part, as provided in Sections 2.07 and 2.10 hereof.  Every Note authenticated and delivered in exchange for, or in lieu of, a Global Note or any portion thereof, pursuant to this Section 2.06 or Section 2.07 or 2.10 hereof, shall be authenticated and delivered in the form of, and shall be, a Global Note.  A Global Note may not be exchanged for another Note other than as provided in this Section 2.06(a), however, beneficial interests in a Global Note may be transferred and exchanged as provided in Section 2.06 (b), (c) or (f) hereof.

 

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

 

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

 

(ii)                                  All Other Transfers and Exchanges of Beneficial Interests in Global Notes.  In connection with all transfers and exchanges of beneficial interests that are not subject to Section 2.06(b)(i) above, the transferor of such beneficial interest must deliver to the Registrar either (A)(1) a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to credit or cause to be credited a beneficial interest in another Global Note in an amount equal to the beneficial interest to be transferred or exchanged and (2) instructions given in accordance with the Applicable Procedures containing information regarding the Participant account to be credited with such increase or (B)(1) a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to cause to be issued a Definitive Note in an amount equal to the beneficial interest to be transferred or exchanged and (2) instructions given by the Depositary to the Registrar containing information regarding the Person in whose name such Definitive Note shall be registered to effect the transfer or exchange referred to in (B)(1) above.  Upon consummation of an Exchange Offer by the Issuer in accordance with Section 2.06(f) hereof, the requirements of this Section 2.06(b)(ii) shall be deemed to have been satisfied upon receipt by the Registrar of the instructions contained in the Letter of Transmittal delivered by the Holder of such beneficial interests in the Restricted Global Notes.  Upon satisfaction of all of the requirements for transfer or exchange of beneficial interests in Global Notes contained in this Indenture and the Notes or otherwise applicable under the Securities Act, the Trustee shall adjust the principal amount of the relevant Global Note(s) pursuant to Section 2.06(h) hereof.

 

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

 

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

 

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

 

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

 

(A)                               such exchange or transfer is effected pursuant to the Exchange Offer in accordance with the Registration Rights Agreement and the holder of the beneficial interest to be transferred, in the case of an exchange, or the transferee, in the case of a transfer, certifies in the applicable Letter of Transmittal that it is not (1) a broker-dealer, (2) a Person participating in the distribution of the Exchange Notes or (3) a Person who is an affiliate (as defined in Rule 144) of the Issuer;

 

(B)                               such transfer is effected pursuant to the Shelf Registration Statement in accordance with the Registration Rights Agreement;

 

(C)                               such transfer is effected by a broker-dealer pursuant to the Exchange Offer Registration Statement in accordance with the Registration Rights Agreement; or

 

(D)                               the Registrar receives the following:

 

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

 

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

 

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

 

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If any such transfer is effected pursuant to clause (B) or (D) above at a time when an Unrestricted Global Note has not yet been issued, the Issuer shall issue and, upon receipt of an Authentication Order in accordance with Section 2.02 hereof, the Trustee shall authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the aggregate principal amount of beneficial interests transferred pursuant to clause (B) or (D) above.

 

(v)                                 Transfer or Exchange of Beneficial Interests in Unrestricted Global Notes for Beneficial Interests in Restricted Global Notes Prohibited.  Beneficial interests in an Unrestricted Global Note cannot be exchanged for, or transferred to Persons who take delivery thereof in the form of, a beneficial interest in a Restricted Global Note.

 

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

 

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

 

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

 

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

 

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

 

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

 

the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to Section 2.06(h) hereof, and the Issuer shall execute and the Trustee shall authenticate and deliver to the Person designated in the instructions a Definitive Note in the appropriate principal amount.  Any Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this Section 2.06(c) shall be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest shall instruct the Registrar through instructions from the Depositary and the Participant or Indirect Participant.  The Trustee shall mail or deliver such Definitive Notes to the Persons in whose names such Notes are so registered.  Any Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this Section 2.06(c)(i) shall

 

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bear the Private Placement Legend and shall be subject to all restrictions on transfer contained therein.

 

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

 

(A)                               such exchange or transfer is effected pursuant to the Exchange Offer in accordance with the Registration Rights Agreement and the holder of such beneficial interest, in the case of an exchange, or the transferee, in the case of a transfer, certifies in the applicable Letter of Transmittal that it is not (1) a broker-dealer, (2) a Person participating in the distribution of the Exchange Notes or (3) a Person who is an affiliate (as defined in Rule 144) of the Issuer;

 

(B)                               such transfer is effected pursuant to the Shelf Registration Statement in accordance with the Registration Rights Agreement;

 

(C)                               such transfer is effected by a broker-dealer pursuant to the Exchange Offer Registration Statement in accordance with the Registration Rights Agreement; or

 

(D)                               the Registrar receives the following:

 

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

 

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

 

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

 

(iii)                               Beneficial Interests in Unrestricted Global Notes to Unrestricted Definitive Notes.  If any holder of a beneficial interest in an Unrestricted Global Note proposes to exchange such beneficial interest for a Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Definitive Note, then, upon satisfaction of the conditions set forth in Section 2.06(b)(ii) hereof, the Trustee

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

the Trustee shall cancel the Restricted Definitive Note, increase or cause to be increased the aggregate principal amount of, in the case of clause (A) above, the appropriate Restricted Global Note, in the case of clause (B) above, the 144A Global Note, and in the case of clause (C) above, the Regulation S Global Note.

 

(ii)                                  Restricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes.  A Holder of a Restricted Definitive Note may exchange such Note for a beneficial interest in an Unrestricted Global Note or transfer such Restricted Definitive Note to a

 

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Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note only if:

 

(A)                               such exchange or transfer is effected pursuant to the Exchange Offer in accordance with the Registration Rights Agreement and the Holder, in the case of an exchange, or the transferee, in the case of a transfer, certifies in the applicable Letter of Transmittal that it is not (1) a broker-dealer, (2) a Person participating in the distribution of the Exchange Notes or (3) a Person who is an affiliate (as defined in Rule 144) of the Issuer;

 

(B)                               such transfer is effected pursuant to the Shelf Registration Statement in accordance with the Registration Rights Agreement;

 

(C)                               such transfer is effected by a broker-dealer pursuant to the Exchange Offer Registration Statement in accordance with the Registration Rights Agreement; or

 

(D)                               the Registrar receives the following:

 

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

 

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

 

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

 

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

 

(iii)                               Unrestricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes.  A Holder of an Unrestricted Definitive Note may exchange such Note for a beneficial interest in an Unrestricted Global Note or transfer such Unrestricted Definitive Note to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note at any time.  Upon receipt of a request for such an exchange or transfer, the Trustee shall cancel the applicable Unrestricted Definitive Note

 

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and increase or cause to be increased the aggregate principal amount of one of the Unrestricted Global Notes.

 

(iv)                              Transfer or Exchange of Unrestricted Definitive Notes to Beneficial Interests in Restricted Global Notes Prohibited.  An Unrestricted Definitive Note cannot be exchanged for, or transferred to Persons who take delivery thereof in the form of, beneficial interests in a Restricted Global Note.

 

(v)                                 Issuance of Unrestricted Global Notes.  If any such exchange or transfer from a Definitive Note to a beneficial interest is effected pursuant to clauses (ii)(B), (ii)(D) or (iii) above at a time when an Unrestricted Global Note has not yet been issued, the Issuer shall issue and, upon receipt of an Authentication Order in accordance with Section 2.02 hereof, the Trustee shall authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the principal amount of Definitive Notes so transferred.

 

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

 

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

 

(A)                               if the transfer will be made pursuant to Rule 144A, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (1) thereof;

 

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

 

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

 

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

 

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(A)                               such exchange or transfer is effected pursuant to the Exchange Offer in accordance with the Registration Rights Agreement and the Holder, in the case of an exchange, or the transferee, in the case of a transfer, certifies in the applicable Letter of Transmittal that it is not (1) a broker-dealer, (2) a Person participating in the distribution of the Exchange Notes or (3) a Person who is an affiliate (as defined in Rule 144) of the Issuer;

 

(B)                               any such transfer is effected pursuant to the Shelf Registration Statement in accordance with the Registration Rights Agreement;

 

(C)                               any such transfer is effected by a broker-dealer pursuant to the Exchange Offer Registration Statement in accordance with the Registration Rights Agreement; or

 

(D)                               the Registrar receives the following:

 

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

 

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

 

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

 

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

 

(f)                                   ***Exchange Offer*****. **Upon the occurrence of the Exchange Offer in accordance with the Registration Rights Agreement, the Issuer shall issue and, upon receipt of an Authentication Order in accordance with Section 2.02, the Trustee shall authenticate (A) one or more Unrestricted Global Notes in an aggregate principal amount equal to the principal amount of the beneficial interests in the Restricted Global Notes tendered for acceptance by Persons that certify in the applicable Letters of Transmittal that (x) they are not broker-dealers, (y) they are not participating in a distribution of the Exchange Notes and (z) they are not affiliates (as defined in Rule 144) of the Issuer, and accepted for exchange in the Exchange Offer and (B) Unrestricted Definitive Notes in an aggregate principal amount equal to the principal amount of the Restricted

 

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Definitive Notes tendered for acceptance by Persons who made the foregoing certification and accepted for exchange in the Exchange Offer.  Concurrently with the issuance of such Notes, the Trustee shall cause the aggregate principal amount of the applicable Restricted Global Notes to be reduced accordingly, and the Issuer shall execute and the Trustee shall authenticate and mail or deliver to the Persons designated by the Holders of Restricted Definitive Notes so accepted Unrestricted Definitive Notes in the appropriate principal amount.  Any Notes that remain outstanding after the consummation of the Exchange Offer, and Exchange Notes issued in connection with the Exchange Offer, shall be treated as a single class of securities under this Indenture.

 

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

 

(i)                                     Private Placement Legend.

 

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

 

“THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (“THE SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH BELOW.  BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT OR (C) IT IS AN ACCREDITED INVESTOR (WITHIN THE MEANING OF RULE 501(a)(1), (2), (3), OR (7) UNDER THE SECURITIES ACT, AS AMENDED, (AN “ACCREDITED INVESTOR”), (2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS SECURITY, PRIOR TO THE EXPIRATION OF THE APPLICABLE HOLDING PERIOD WITH RESPECT TO RESTRICTED SECURITIES SET FORTH IN RULE 144 UNDER THE SECURITIES ACT, EXCEPT (A) TO THE ISSUER OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES (OR HAS FURNISHED ON ITS BEHALF BY A U.S. BROKER DEALER) TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS SECURITY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE FOR THIS SECURITY), (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT (IF AVAILABLE), (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF

 

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AVAILABLE), (F) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE ISSUER SO REQUESTS), OR (G) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.  IN CONNECTION WITH ANY TRANSFER OF THIS SECURITY, PRIOR TO THE EXPIRATION OF THE APPLICABLE HOLDING PERIOD WITH RESPECT TO RESTRICTED SECURITIES SET FORTH IN RULE 144 UNDER THE SECURITIES ACT, IF THE PROPOSED TRANSFEREE IS AN ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND THE ISSUER SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.  AS USED HEREIN, THE TERMS “OFFSHORE TRANSACTION,” “UNITED STATES” AND “U.S. PERSON” HAVE THE MEANING GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.”

 

(B)                               Notwithstanding the foregoing, any Global Note or Definitive Note issued pursuant to clauses (b)(iv), (c)(ii), (c) (iii), (d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f) to this Section 2.06 (and all Notes issued in exchange therefor or substitution thereof) shall not bear the Private Placement Legend.

 

(ii)                                  Global Note Legend.  Each Global Note shall bear a legend in substantially the following form:

 

“THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE ISSUER.

 

UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.

 

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UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (“DTC”), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.”

 

(h)                                 ***Cancellation and/or Adjustment of Global Notes*****. **At such time as all beneficial interests in a particular Global Note have been exchanged for Definitive Notes or a particular Global Note has been redeemed, repurchased or cancelled in whole and not in part, each such Global Note shall be returned to or retained and cancelled by the Trustee in accordance with Section 2.11 hereof.  At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note or for Definitive Notes, the principal amount of Notes represented by such Global Note shall be reduced accordingly and an endorsement shall be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such reduction; and if the beneficial interest is being exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note, such other Global Note shall be increased accordingly and an endorsement shall be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such increase.

 

(i)                                     ***General Provisions Relating to Transfers and Exchanges***.

 

(i)                                     To permit registrations of transfers and exchanges, the Issuer shall execute and, upon receipt of (a) an Authentication Order in accordance with Section 2.02 and (b) an Officer’s Certificate and an Opinion of Counsel each stating that all conditions precedent and covenants provided for in this Indenture relating to authentication and delivery of the Notes have been complied with, and that such Notes will constitute valid and legally binding obligations of the Issuer, enforceable in accordance with their terms, the Trustee shall authenticate Global Notes and Definitive Notes upon the Issuer’s order or at the Registrar’s request.

 

(ii)                                  No service charge shall be made to a Holder of a beneficial interest in a Global Note or to a Holder of a Definitive Note for any registration of transfer or exchange, but the Issuer may require payment of a sum sufficient to cover any transfer Tax or similar governmental charge payable in connection therewith (other than any such transfer Taxes or similar governmental charge payable upon exchange or transfer pursuant to Sections 2.10, 3.06, 4.12, 4.18 and 9.05 hereof).

 

(iii)                               All Global Notes and Definitive Notes issued upon any registration of transfer or exchange of Global Notes or Definitive Notes shall be the valid obligations of the Issuer, evidencing the same debt, and entitled to the same benefits under this

 

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Indenture, as the Global Notes or Definitive Notes surrendered upon such registration of transfer or exchange.

 

(iv)                              Neither the Registrar nor the Issuer shall be required (A) to issue, to register the transfer of or to exchange any Notes during a period beginning at the opening of business 15 days before the day of any selection of Notes for redemption under Section 3.02 hereof and ending at the close of business on the day of selection, (B) to register the transfer of or to exchange any Note so selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part or (C) to register the transfer of or to exchange a Note between a record date and the next succeeding interest payment date.

 

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

 

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

 

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

 

(viii)                        The Trustee is hereby authorized to enter into a letter of representation with the Depository in the form provided by the Issuer and to act in accordance with such letter.  Neither the Trustee nor any Agent of the Trustee shall have any responsibility for any actions taken or not taken by the Depositary.

 

(ix)                              Each Holder of a Note agrees to indemnify the Issuer and Trustee against any liability that may result from the transfer, exchange or assignment of such Holder’s Note in violation of any provision of this Indenture and/or applicable United States federal or state securities laws.

 

(x)                                 The Trustee shall have no responsibility or obligation to any Participant or Indirect Participant or any other Person with respect to the accuracy of the books or records, or the acts or omissions, of the Depositary or its nominee or of any participant or member thereof, with respect to any ownership interest in the Notes or with respect to the delivery to any Participant or Indirect Participant or other Person (other than the Depositary) of any notice (including any notice of redemption) or the payment of any amount, under or with respect to such Notes.  All notices and communications to be given to the Holders and all payments to be made to Holders under the Notes shall be given or made only to or upon the order of the registered Holders (which shall be the Depositary or its nominee in the case of a Global Note).  The rights of beneficial owners in any Global Note shall be exercised only through the Depositary subject to the customary procedures of the Depositary.  The Trustee may rely and shall be fully

 

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protected in relying upon information furnished by the Depositary with respect to its Participants or Indirect Participants.

 

(xi)                              The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Note (including any transfers between or among Participants or Indirect Participants in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by, the terms of this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.

 

(xii)                           The Trustee shall not be responsible or liable for any actions taken or not taken by DTC.

 

(j)                                    ***Restrictions on Exchange of Regulation S Global Note*****. **Beneficial ownership interests in the Regulation S Global Notes shall not be exchangeable for interests in the Rule 144A Global Notes, Unrestricted Global Notes, Restricted Definitive Notes or Unrestricted Definitive Notes until the expiration of the Distribution Compliance Period and then only upon certification that beneficial ownership interests in such Regulation S Global Note are owned by or being transferred to either non U.S. Persons or U.S. Persons who purchased such interests in a transaction that did not require registration under the Securities Act.  The written certificate delivered pursuant to the applicable provisions in Section 2.06(b)-(e) in the form provided therein shall be deemed satisfactory for purposes of this clause with respect to the relevant exchange of interests.

 

Section 2.07.                          Replacement Notes.If any mutilated Note is surrendered to the Trustee or the Issuer and the Trustee receives evidence to its satisfaction of the destruction, loss or theft of any Note, the Issuer shall issue and the Trustee, upon receipt of an Authentication Order, shall authenticate a replacement Note if the Trustee’s requirements are met.  If required by the Trustee or the Issuer, an indemnity bond must be supplied by the Holder that is sufficient in the judgment of the Trustee and the Issuer to protect the Issuer, the Trustee, any Agent and any authenticating agent from any loss that any of them may suffer if a Note is replaced.  The Issuer may charge for its expenses in replacing a Note.

 

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

 

Section 2.08.                          Outstanding Notes.

 

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

 

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by the Parent or its Subsidiaries shall not be deemed to be outstanding for purposes of Section 3.07(b) hereof.

 

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

 

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

 

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

 

Section 2.09.                          Treasury Notes.In determining whether the Holders of the required principal amount of Notes have concurred in any direction, waiver or consent, Notes owned by the Issuer, or by any Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Issuer, shall be considered as though not outstanding, except that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent, only Notes that the Trustee knows are so owned shall be so disregarded.  Notes so owned which have been pledged in good faith shall not be disregarded if the pledge establishes to the satisfaction of the Trustee the pledgee’s right to deliver any such direction, waive its consent with respect to the Notes and that the pledgee is not the Issuer or any obligor of the Notes or any Affiliate of the Issuer or of such other obligor.

 

Section 2.10.                          Temporary Notes.Until certificates representing Notes are ready for delivery, the Issuer may prepare and the Trustee, upon receipt of an Authentication Order, shall authenticate temporary Notes.  Temporary Notes shall be substantially in the form of certificated Notes but may have variations that the Issuer considers appropriate for temporary Notes and as shall be reasonably acceptable to the Trustee.  Without unreasonable delay, the Issuer shall prepare and the Trustee shall authenticate Definitive Notes in exchange for temporary Notes.

 

Holders and beneficial holders, as the case may be, of temporary Notes shall be entitled to all of the benefits accorded to Holders, or beneficial holders, respectively, of the Notes under this Indenture.

 

Section 2.11.                          Cancellation.The Issuer at any time may deliver Notes to the Trustee for cancellation.  The Registrar and Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of transfer, exchange or payment.  The Trustee upon direction by the Issuer and no one else shall cancel all Notes surrendered for registration of transfer, exchange, payment, replacement or cancellation and shall destroy cancelled Notes (subject to the record retention requirements of the Exchange Act).  Certification of the destruction of all cancelled Notes shall be delivered to the Issuer.  The Issuer may not issue new Notes to replace Notes that it has paid or that have been delivered to the Trustee for cancellation.

 

Section 2.12.                          Defaulted Interest.If the Issuer defaults in a payment of interest or Additional Interest, if any, on the Notes, it shall pay the defaulted interest in any lawful manner

 

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

 

Section 2.13.                          CUSIP or ISIN Numbers.The Issuer in issuing the Notes may use “CUSIP” or “ISIN” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” or “ISIN” numbers in notices of redemption as a convenience to Holders; *provided*, *however*, that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Notes, and any such redemption shall not be affected by any defect in or omission of such numbers.  The Issuer shall promptly notify the Trustee of any change in the “CUSIP” or “ISIN” numbers.

 

Section 2.14.                          Additional Interest.If Additional Interest is payable by the Issuer pursuant to the Registration Rights Agreement and paragraph 1 of the Notes, the Issuer shall deliver to the Trustee a certificate to that effect stating (i) the amount of such Additional Interest that is payable and (ii) the date on which such interest is payable.  Unless and until a Responsible Officer of the Trustee receives such a certificate or instruction or direction from the Holders in accordance with the terms of the Indenture, the Trustee may assume without inquiry that no Additional Interest is payable.  The foregoing shall not prejudice the rights of the Holders with respect to their entitlement to Additional Interest as otherwise set forth in this Indenture or the Notes and pursuing any action against the Issuer directly or otherwise directing the Trustee to take any such action in accordance with the terms of this Indenture and the Notes.  If the Issuer has paid Additional Interest directly to the persons entitled to it, the Issuer shall deliver to the Trustee a certificate setting forth the particulars of such payment.

 

**ARTICLE 3**

 

**REDEMPTION AND PREPAYMENT**

 

Section 3.01.                          Notices to Trustee.If the Issuer elects to redeem Notes pursuant to the optional redemption provisions of Section 3.07 hereof, it shall furnish to the Trustee, at least 45 days (unless a shorter notice shall be agreed to by the Trustee) but not more than 60 days before a redemption date, an Officer’s Certificate complying with the applicable provisions of Section 12.05 setting forth (i) the clause of this Indenture pursuant to which the redemption shall occur, (ii) the redemption date, (iii) the principal amount of Notes to be redeemed and (iv) the redemption price.

 

Section 3.02.                          Selection of Notes to Be Redeemed or Repurchased.If less than all of the Notes are to be redeemed at any time, the Notes shall be selected to be redeemed or repurchased

 

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in accordance with the applicable procedures of the DTC.  In the event of partial redemption by lot, the particular Notes to be redeemed shall be selected, unless otherwise provided herein, not less than 30 nor more than 60 days prior to the redemption date from the outstanding Notes not previously called for redemption.

 

The Trustee shall promptly notify the Issuer in writing of the Notes selected for redemption and, in the case of any Note selected for partial redemption, the principal amount thereof to be redeemed.  Notes and portions of Notes selected shall be in amounts of $200,000 or integral multiples of $1,000 in excess thereof; *provided*that if all of the Notes of a Holder are to be redeemed, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be redeemed.  Except as provided in the preceding sentence, provisions of this Indenture that apply to Notes called for redemption also apply to portions of Notes called for redemption.

 

In connection with any redemption of Notes, any such redemption may, at the Issuer’s discretion, be subject to one or more conditions precedent.

 

Section 3.03.                          Notice of Redemption.Subject to Section 3.09 hereof, at least 30 days but not more than 60 days before a redemption date, the Issuer shall mail or cause to be mailed, by first class mail, a notice of redemption to each Holder whose Notes are to be redeemed at its registered address, except that redemption notices may be mailed more than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of the Notes or a satisfaction or discharge of this Indenture.

 

The notice shall identify the Notes to be redeemed, the CUSIP number, and shall state:

 

(a)                                 the redemption date;

 

(b)                                 the redemption price or if the redemption is made pursuant to Section 3.07(b) a calculation of the redemption price;

 

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

 

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

 

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

 

(f)                                   that, unless the Issuer defaults in making such redemption payment, interest and Additional Interest, if any, on Notes called for redemption ceases to accrue on and after the redemption date;

 

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

 

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

 

At the Issuer’s request, the Trustee shall give the notice of redemption in the Issuer’s name and at its expense; *provided*, *however*, that the Issuer shall have delivered to the Trustee, at least 45 days, or such shorter period allowed by the Trustee, prior to the redemption date, an Officer’s Certificate requesting that the Trustee give such notice and setting forth the information to be stated in such notice as provided in this Section 3.03 (unless a shorter notice shall be agreed to by the Trustee).

 

Any inadvertent defect in the notice of redemption, including an inadvertent failure to give notice, to any Holder selected for redemption will not impair or affect the validity of the redemption of any other Note redeemed in accordance with the provisions of the Indenture.

 

Section 3.04.                          Effect of Notice of Redemption.Once notice of redemption is mailed in accordance with Section 3.03 hereof, Notes called for redemption become irrevocably due and payable on the redemption date at the redemption price.  In connection with any redemption of Notes, any such redemption may, at the Issuer’s discretion, be subject to one or more conditions precedent.

 

Section 3.05.                          Deposit of Redemption Price.On or before 11:00 a.m. (New York City time) on any redemption date, the Issuer shall deposit with the Trustee or with the Paying Agent money sufficient to pay the redemption price of and accrued interest and Additional Interest, if any, on all Notes to be redeemed on that date.

 

If the Issuer complies with the provisions of the preceding paragraph, on and after the redemption date, interest and Additional Interest, if any, shall cease to accrue on the Notes or the portions of Notes called for redemption.  If a Note is redeemed on or after an interest record date but on or prior to the related interest payment date, then any accrued and unpaid interest shall be paid to the Person in whose name such Note was registered at the close of business on such record date.  If any Note called for redemption shall not be so paid upon surrender for redemption because of the failure of the Issuer to comply with the preceding paragraph, interest and Additional Interest, if any, shall be paid on the unpaid principal from the redemption date until such principal is paid, and to the extent lawful on any interest not paid on such unpaid principal, in each case at the rate provided in the Notes and in Section 4.01 hereof.

 

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Section 3.06.                          Notes Redeemed in Part.Upon surrender of a Note that is redeemed in part, the Issuer shall issue and, upon the Issuer’s written request, the Trustee shall authenticate for the Holder at the expense of the Issuer a new Note equal in principal amount to the unredeemed portion of the Note surrendered.

 

Section 3.07.                          Optional Redemption.

 

(a)                                 Except as set forth in clause (b) and (c) of this Section 3.07, the Notes will not be redeemable at the option of the Issuer prior to April 1, 2017.  On or after April 1, 2017, the Issuer may redeem all or a part of the Notes after giving the required notice under this Indenture.  The Notes may be redeemed at the redemption prices (expressed as percentages of principal amount) set forth below, plus accrued and unpaid interest and Additional Interest, if any, on the Notes redeemed to the applicable redemption date (subject to the right of Holders on the relevant record date to receive interest due on the relevant interest payment date), if redeemed during the twelve-month period beginning on April 1 of the years indicated below:

 
| **Year**            | ** ** | **Percent** | ** ** |
|---------------------|------------|-------------|------------|
| 2017                |       | 103.938     | %          |
| 2018                |       | 102.625     | %          |
| 2019                |       | 101.313     | %          |
| 2020 and thereafter |       | 100.000     | %          |

 

(b)                                 At any time and from time to time prior to April 1, 2017, the Issuer may redeem up to 35% of the aggregate principal amount of the Notes issued under this Indenture (including Additional Notes) at a redemption price equal to 105.25% of the principal amount thereof, *plus*accrued and unpaid interest and Additional Interest, if any, to the redemption date (subject to the right of Holders on the relevant record date to receive interest due on the relevant interest payment date) with the net cash proceeds of any Qualified Equity Offering; *provided*, *however*, that:

 

(1)                                 after giving effect to any such redemption, at least 65% of the aggregate principal amount of the Notes issued on the Issue Date (excluding Notes held by the Parent and its Subsidiaries) remains outstanding immediately after the occurrence of such redemption; and

 

(2)                                 any such redemption shall be made within 90 days of such Qualified Equity Offering upon not less than 30 nor more than 60 days’ prior notice.

 

(c)                                  At any time and from time to time prior to April 1, 2017, the Issuer may redeem all or a part of the Notes upon not less than 30 nor more than 60 days prior notice under this Indenture at a redemption price equal to 100% of the principal amount of the Notes redeemed plus the Applicable Premium as of, and accrued and unpaid interest and Additional Interest, if any, to the redemption date (subject to the right of Holders on the relevant record date to receive interest due on the relevant interest payment date).

 

(d)                                 Any prepayment pursuant to this Section 3.07 shall be made pursuant to the provisions of Sections 3.01 through 3.06 hereof.  Unless the Issuer defaults in the payment of the

 

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applicable redemption price, interest will cease to accrue on the Notes or portions thereof called for redemption on the applicable redemption date.

 

Section 3.08.                          Mandatory Redemption.

 

(a)                                 The Issuer shall not be required to make sinking fund payments with respect to the Notes.  However, under certain circumstances, the Issuer may be required to offer to repurchase the Notes pursuant to Sections 3.09, 4.12 and 4.18.

 

(b)                                 In addition, Issuer and its Subsidiaries may acquire Notes by means other than a redemption or required repurchase whether by tender offer, open market purchases, negotiated transactions or otherwise, in accordance with applicable securities laws, so long as such acquisition does not otherwise violate the terms of this Indenture.

 

Section 3.09.                          Offer To Purchase by Application of Excess Proceeds.

 

(a)                                 In the event that, pursuant to Section 4.12 hereof, the Issuer shall be required to commence an offer to all Holders to purchase Notes (an “*Asset Sale Offer*”), it shall follow the procedures specified below.

 

(b)                                 The Asset Sale Offer shall remain open for a period of 20 Business Days following its commencement and no longer, except to the extent that a longer period is required by applicable law (the “*Offer Period*”).  No later than five Business Days after the termination of the Offer Period (the “*Purchase Date*”), the Issuer shall purchase the principal amount of Notes required to be purchased pursuant to Section 4.12 hereof (the “*Offer Amount*”) or, if less than the Offer Amount has been tendered, all Notes tendered in response to the Asset Sale Offer.  Payment for any Notes so purchased shall be made in the same manner as interest payments are made.

 

(c)                                  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 shall 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 shall be payable to Holders who tender Notes pursuant to the Asset Sale Offer.

 

(d)                                 Upon the commencement of the Asset Sale Offer, the Issuer shall send, by first class mail, a notice to each of the Holders, with a copy to the Trustee.  The notice shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer.  The Asset Sale Offer shall be made to all Holders.  The notice, which shall govern the terms of the Asset Sale Offer, shall state:

 

(i)                                     that the Asset Sale Offer is being made pursuant to this Section 3.09 and Section 4.12 hereof and the length of time the Asset Sale Offer shall remain open;

 

(ii)                                  the Offer Amount, the purchase price and the Purchase Date;

 

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

 

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

 

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(v)                                 that Holders electing to have a Note purchased pursuant to an Asset Sale Offer may elect to have Notes purchased in denominations of $200,000 and integral multiples of $1,000 in excess thereof;

 

(vi)                              that Holders electing to have a Note purchased pursuant to any Asset Sale Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, 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;

 

(vii)                           that Holders shall 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, 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;

 

(viii)                        that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Offer Amount, the Issuer shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Issuer so that only Notes in denominations of $200,000 or integral multiples of $1,000 in excess thereof shall be purchased); and

 

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

 

(e)                                  On or before the Purchase Date, the Issuer shall, to the extent lawful, (1) accept for payment, on a *pro rata*basis to the extent necessary, the Offer Amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all Notes tendered, and (2) shall deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance with the terms of this Section 3.09.

 

(f)                                   The Issuer, the Depositary or the Paying Agent, as the case may be, shall promptly (but in any case not later than five Business Days after the Purchase Date) mail or 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 shall promptly issue a new Note, and the Trustee, upon written request from the Issuer shall authenticate and mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered.  Any Note not so accepted shall be promptly mailed or delivered by Issuer to the Holder thereof.  The Issuer shall publicly announce the results of the Asset Sale Offer on the Purchase Date.

 

Other than as specifically provided in this Section 3.09 or Section 4.12 hereof, any purchase pursuant to this Section 3.09 shall be made pursuant to the provisions of Section 3.01 through 3.06 hereof.

 

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Section 3.10.                          Redemption for Taxation Reasons.The Notes may be redeemed, at the option of the Issuer, as a whole but not in part, upon giving not less than 30 days’ nor more than 60 days’ notice to Holders (which notice will be irrevocable), at a redemption price equal to 100% of the principal amount thereof, together with accrued and unpaid interest (including any Additional Amounts), if any, to the date fixed by the Issuer for redemption if, as a result of:

 

(1)                                 any change in, or amendment to, the laws (or any regulations or rulings promulgated thereunder) of a Taxing Jurisdiction affecting taxation; or

 

(2)                                 any change in, or amendment to, an official position regarding the application or interpretation of such laws, regulations or rulings (including a holding, judgment or order by a court of competent jurisdiction),

 

which change or amendment becomes effective on or after the date on which such jurisdiction becomes a Taxing Jurisdiction, and the Issuer or any Guarantor, as the case may be, is, or on the next interest payment date would be, required to pay Additional Amounts, and such requirement cannot be avoided by the Issuer or any Guarantor, as the case may be, taking reasonable measures available to it; provided that for the avoidance of doubt, changing the jurisdiction of the Issuer or any Guarantor is not a reasonable measure for the purposes of this Section 3.10; provided, further, that no such notice of redemption will be given earlier than 90 days prior to the earliest date on which the Issuer or any Guarantor, as the case may be, would be obligated to pay such Additional Amounts if a payment in respect of the Notes were then due.

 

Prior to the mailing of any notice of redemption of the Notes pursuant to the foregoing, the Issuer will deliver to the Trustee:

 

(1)                                 an Officer’s Certificate stating that such change or amendment referred to in the prior paragraph has occurred, and describing the facts related thereto and stating that such requirement cannot be avoided by the Issuer or Guarantor, as the case may be, taking reasonable measures available to it; and

 

(2)                                 an Opinion of Counsel of recognized international standing stating that the requirement to pay such Additional Amounts results from such change or amendment referred to in the prior paragraph.

 

The Trustee will accept such certificate and opinion as sufficient evidence of the satisfaction of the conditions precedent described above, in which event it will be conclusive and binding on the Holders.

 

Any Notes that are redeemed will be cancelled.

 

**ARTICLE 4**

 

**COVENANTS**

 

Section 4.01.                          Payment of Notes.The Issuer shall pay or cause to be paid the principal of, premium, if any, and interest on the Notes on the dates and in the manner provided in the Notes.  Principal, premium, if any, and interest and Additional Interest, if any, shall be considered paid

 

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on the date due if the Paying Agent, if other than the Parent or a Subsidiary thereof, holds as of 11:00 a.m. (New York City time) on the due date money deposited by the Issuer in immediately available funds and designated for and sufficient to pay all principal, premium, if any, and interest and Additional Interest, if any, then due.  The Issuer shall pay Additional Interest, if any, in the same manner, on the dates and in the amounts set forth in the Registration Rights Agreement.

 

The Issuer shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal and premium, if any, from time to time on demand at a rate that is 1% per annum in excess of the rate then in effect; it shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest and Additional Interest, if any, (without regard to any applicable grace periods) from time to time on demand at the same rate to the extent lawful.

 

Interest shall be computed on the basis of a 360-day year of twelve 30-day months.

 

Section 4.02.                          Maintenance of Office or Agency.

 

(a)                                 The Issuer shall maintain an office or agency (which may be an office or drop facility of the Trustee or an Affiliate of the Trustee, Registrar or co-registrar) where Notes may be presented or surrendered for registration of transfer or for exchange and where notices and demands to or upon the Issuer in respect of the Notes and this Indenture may be served.

 

The Issuer shall give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency.  If at any time the Issuer shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Issuer hereby appoints the Trustee as its Agent to receive all such presentations, surrenders, notices and demands.

 

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

 

(c)                                  The Issuer hereby designates the Corporate Trust Office of the Trustee, as one such office, drop facility or agency of the Issuer in accordance with Section 2.03.

 

Section 4.03.                          Reports.

 

(a)                                 Notwithstanding that the Issuer may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, so long as any Notes are outstanding the Parent shall furnish to the Trustee and the Holders of the Notes:

 

(i)                                     within the time periods specified in the SEC’s rules and regulations, all annual financial information that would be required to be contained in a filing with the SEC on Form 20-F if the Parent were required to file such Form pursuant to Section 13(a) or 15(d) of the Exchange Act or any successor provision thereto, including a “Operating

 

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and Financial Review and Prospects” and a report on the Parent’s consolidated annual financial statements by the Parent’s certified independent accountants; and

 

(ii)                                  within 45 days of the first three fiscal quarters of each fiscal year of the Parent, quarterly financial information prepared on the same basis as the audited financial information referred to in clause (i) above which shall have been the subject of a SAS 100 (or equivalent) review by the Parent’s certified independent accountants together with a “Operating and Financial Review and Prospects” for such fiscal quarter.

 

Parent shall be deemed to have furnished such reports to the Trustee and the Holders if the Parent has filed such information or reports with the SEC via the EDGAR filing system and such information or reports are publicly available.

 

(b)                                 Delivery of such reports, information and documents to the Trustee shall be for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Parent’s compliance with any of the covenants contained in this Indenture (as to which the Trustee will be entitled to conclusively rely upon an Officer’s Certificate).

 

(c)                                  In addition, following the consummation of the Exchange Offer contemplated by the Registration Rights Agreement, whether or not required by the SEC, the Parent shall file a copy of all of the information and reports referred to in clauses (i) and (ii) of Section 4.03(a) with the SEC for public availability within the time periods specified in the SEC’s rules and regulations (unless the SEC will not accept such a filing).

 

(d)                                 For so long as any Notes remain outstanding, if at any time the Parent is not required to file with the SEC the information and reports required by clauses (i) and (ii) of Section 4.03(a), the Parent shall furnish to the Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.

 

(e)                                  The Issuer shall file with the Trustee and the SEC, and transmit to Holders, such other information, documents and other reports, and such summaries thereof, as may be required pursuant to the TIA at the times and in the manner provided pursuant to the TIA.

 

(f)                                   Notwithstanding anything herein to the contrary, the Parent will not be deemed to have failed to comply with this Section 4.03 for purposes of clause (iv) of Section 6.01 until 120 days after the date any information or report hereunder is required to be furnished to Holders of Notes or filed with the SEC pursuant to this Section 4.03.

 

Section 4.04.                          Compliance Certificate.

 

(a)                                 The Issuer shall deliver to the Trustee, within 90 days after the end of each fiscal year ended December 31, an Officer’s Certificate stating that a review of the activities of the Parent and its Subsidiaries during the preceding fiscal year has been made under the supervision of the signing officers with a view to determining whether the Parent and its Subsidiaries have kept, observed, performed and fulfilled its obligations under this Indenture, and further stating, as to each such Officer signing such certificate, that to the best of his or her knowledge the Parent and its Subsidiaries have kept, observed, performed and fulfilled each and every covenant contained in this Indenture and are not in default in the performance or

 

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observance of any of the terms, provisions and conditions of this Indenture (or, if a Default or Event of Default shall have occurred, describing all such Defaults or Events of Default of which he or she may have knowledge and what action the Issuer is taking or proposes to take with respect thereto) and that to the best of his or her knowledge no event has occurred and remains in existence by reason of which payments on account of the principal of or interest, if any, on the Notes is prohibited or if such event has occurred, a description of the event and what action the Issuer is taking or proposes to take with respect thereto and, if there is an existing Event of Default, the status thereof.

 

(b)                                 The Issuer shall deliver to the Trustee, within 30 days after the occurrence thereof (or within five (5) Business Days of an executive officer becoming actually aware thereof), written notice in the form of an Officer’s Certificate of any event that with the giving of notice and the lapse of time would become a Default or an Event of Default, its status and what action the Issuer is taking or proposes to take with respect thereto.

 

Section 4.05.                          Taxes.Parent shall pay, and shall cause each of the Restricted Subsidiaries to pay, prior to delinquency, all material Taxes, assessments, and governmental levies except such as are contested in good faith and by appropriate proceedings or where the failure to effect such payment is not adverse in any material respect to the Holders of the Notes; *provided*that neither the Parent nor any such Restricted Subsidiary shall be required to pay or discharge, or cause to be paid or discharged, any such Tax, assessment, charge or claim the amount, applicability or validity of which is being contested in good faith by appropriate proceedings and for which adequate reserves have been established in accordance with IFRS (or GAAP to the extent required by applicable law).

 

Section 4.06.                          Stay, Extension and Usury Laws.Parent and the Restricted Subsidiaries covenant (to the extent that they may lawfully do so) that they shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of this Indenture; and the Parent and the Restricted Subsidiaries (to the extent that they may lawfully do so) hereby expressly waive all benefit or advantage of any such law, and covenant that they shall not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but shall suffer and permit the execution of every such power as though no such law has been enacted.

 

Section 4.07.                          Corporate Existence.Subject to Article 5 hereof, the Parent shall do or cause to be done all things necessary to preserve and keep in full force and effect (i) its corporate existence, and the corporate, partnership or other existence of each of the Restricted Subsidiaries, in accordance with the respective organizational documents (as the same may be amended from time to time) of the Parent or any such Restricted Subsidiary and (ii) the rights (charter and statutory), licenses and franchises of the Parent and the Restricted Subsidiaries; *provided*, *however*, that the Parent shall not be required to preserve any such right, license or franchise, or the corporate, partnership or other existence of any of the Restricted Subsidiaries, if the Board of Directors of the Parent shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Parent and the Restricted Subsidiaries, taken as a whole, and that the loss thereof is not adverse in any material respect to the Holders of the Notes.

 

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Section 4.08.                          Payments for Consent.Parent shall not, and shall not permit any of the Restricted Subsidiaries to, directly or indirectly, pay or cause to be paid any consideration, whether by way of interest, fee or otherwise, to or for the benefit of any Holder of Notes for or as an inducement to any consent, waiver or amendment of any of the terms or provisions of this Indenture or the Notes unless such consideration is offered to be paid and is paid to all Holders of the Notes that consent, waive or agree to amend in the time frame set forth in the solicitation documents relating to such consent, waiver or agreement.

 

Section 4.09.                          Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock.

 

(a)                                 Parent shall not, and shall not permit any of the Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “*incur*”) any Indebtedness (including Acquired Debt), and the Parent shall not issue any Disqualified Stock and shall not permit any of the Restricted Subsidiaries to issue any shares of preferred stock; *provided*, *however*, the Parent may incur Indebtedness (including Acquired Debt) or issue Disqualified Stock, and the Issuer and any of the Guarantors may incur Indebtedness (including Acquired Debt) or issue preferred stock, if the Fixed Charge Coverage Ratio for the Parent and the Restricted Subsidiaries on a consolidated basis for the Parent’s most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock or such preferred stock is issued, as the case may be, would have been at least 2.00 to 1.00, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom including to refinance other Indebtedness), as if the additional Indebtedness had been incurred or the preferred stock or Disqualified Stock had been issued, as the case may be, at the beginning of such four-quarter period.

 

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

 

(i)                                     Indebtedness incurred by the Parent and the Restricted Subsidiaries pursuant to Credit Facilities and any Qualified Securitization Financing, including the Credit Agreement, in an amount outstanding at any time not to exceed the sum of (x) $4,500.0 million *plus*(y) €430.0 million;

 

(ii)                                  the incurrence by the Parent and the Restricted Subsidiaries of the Existing Indebtedness;

 

(iii)                               the incurrence by the Parent and any Guarantor of Indebtedness represented by the Notes to be issued on the Issue Date and the Guarantees thereof (and any Notes and Guarantees issued in exchange for the Notes and Guarantees pursuant to the Registration Rights Agreement);

 

(iv)                              the incurrence by the Parent or any Restricted Subsidiary of Indebtedness represented by Capital Lease Obligations, mortgage financings, purchase money obligations, industrial development or similar bonds, or tax-advantaged governmental or quasi-governmental financing, including, without limitation, the sale and leaseback arrangements described under clause (5) under the exclusions set forth under the

 

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definition of “Asset Sales” in each case incurred for the purpose of financing all or any part of the purchase price or cost of design, development, construction, installation or improvement (including at any point subsequent to the purchase) of real or personal property, plant or equipment used in the business of the Parent or the business of such Restricted Subsidiary (whether through the direct acquisition or otherwise of such assets or the acquisition of Equity Interests of any Person owning such assets), in an aggregate principal amount, including all Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (iv), not to exceed the greater of (x) $400.0 million and (y) 3.0% of Total Assets, at any time outstanding;

 

(v)                                 the incurrence by the Parent or any Restricted Subsidiary of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to renew, refund, refinance, replace, defease or discharge Indebtedness (other than intercompany Indebtedness) that was incurred under clause (a) of this Section 4.09 or clauses (ii), (iii), (v) and (xvi) of this Section 4.09(b);

 

(vi)                              the incurrence by the Parent or any Restricted Subsidiary of intercompany Indebtedness owed to the Parent or any Restricted Subsidiary; *provided*, *however*, that to the extent the aggregate amount of Indebtedness incurred in reliance on this clause (vi) following the Issue Date exceeds $200.0 million:

 

(A)                               if the Issuer is the obligor on any such Indebtedness owed to any Restricted Subsidiary that is not a Guarantor, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations then due with respect to the Notes;

 

(B)                               if a Guarantor is the obligor on any such Indebtedness owed to any Restricted Subsidiary that is not the Issuer or a Guarantor, such Indebtedness is expressly subordinated to the prior payment in full in cash of all Obligations then due with respect to such Guarantor’s Guarantee; and

 

(C)                               (1) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Parent or a Restricted Subsidiary and (2) any sale or other transfer of any such Indebtedness (other than the creation of a Permitted Lien upon such intercompany Indebtedness to a Person that is not either the Parent or a Restricted Subsidiary) shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Parent or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (vi);

 

(vii)                           the incurrence by the Parent or any Restricted Subsidiary of Hedging Obligations or entry into derivative transactions, in each case, so long as such obligations and transactions are not entered into for speculative purposes;

 

(viii)                        the incurrence of Guarantees by the Parent, the Issuer or any of the Guarantors of the Indebtedness of the Parent or any Restricted Subsidiary that was permitted to be incurred by another provision of this Section 4.09;

 

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(ix)                              the incurrence of Guarantees by any Restricted Subsidiary that is not a Guarantor of Indebtedness of a Restricted Subsidiary that is not a Guarantor that was permitted to be incurred by another provision of this Section 4.09;

 

(x)                                 the incurrence by the Parent and the Restricted Subsidiaries of Indebtedness in respect of workers’ compensation claims, self-retention or self-insurance obligations, unemployment insurance, performance, bid, release, appeal, surety and similar bonds and related reimbursement obligations, completion guarantees and letters of credit supporting the foregoing, in each case, provided or incurred by the Parent and the Restricted Subsidiaries in the ordinary course of business, guarantees and letters of credit supporting the foregoing, in each case, for the account of suppliers in the ordinary course of business, and obligations in connection with participation in government reimbursement or other programs or other similar requirements;

 

(xi)                              the incurrence by the Parent and the Restricted Subsidiaries of Indebtedness arising from the Parent’s and the Restricted Subsidiaries’ agreements providing for indemnification, contribution, earn out, adjustment of purchase price or similar obligations, in each case, incurred or assumed in connection with the sale of goods or acquisition or disposition of any business, assets or Capital Stock of a Restricted Subsidiary; *provided*that the maximum aggregate liability in respect of all such Indebtedness shall at no time exceed the gross proceeds actually received by the Parent and the Restricted Subsidiaries in connection with such acquisition or disposition;

 

(xii)                           the incurrence by the Parent and the Restricted Subsidiaries of Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently drawn against insufficient funds in the ordinary course of business, *provided*, *however*, that such Indebtedness is extinguished within five Business Days of incurrence;

 

(xiii)                        the incurrence by the Parent or any Restricted Subsidiary of Indebtedness to the extent the net proceeds thereof are promptly deposited to defease the Notes pursuant to Article 8;

 

(xiv)                       [Reserved];

 

(xv)                          the incurrence of Indebtedness consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;

 

(xvi)                       the incurrence by the Parent or any of its Restricted Subsidiaries of (1) Acquired Debt outstanding on the date on which such Person became a Restricted Subsidiary or was acquired by, or merged into, the Company or any Restricted Subsidiary or (2) Indebtedness to finance all or a portion of any such transaction; provided that to the extent the aggregate amount of Indebtedness incurred in reliance on this clause (xvi) following the Issue Date exceeds $300.0 million, then on a pro forma basis, either (A) the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a) hereof or (B) the

 

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Fixed Charge Coverage Ratio would not be less than immediately prior to such transactions;

 

(xvii)                    Indebtedness of the Parent or any Restricted Subsidiary constituting reimbursement obligations with respect to letters of credit or trade Guarantees issued in the ordinary course of business to the extent that such letters of credit or trade Guarantees are not drawn upon or, if drawn upon, to the extent such drawing is reimbursed no later than the 30 days following receipt by the Parent or such Restricted Subsidiary of a demand for reimbursement;

 

(xviii)                 Guarantees in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of the Parent or any Restricted Subsidiary;

 

(xix)                       to the extent constituting Indebtedness, (1) deferred compensation to employees of the Parent and the Restricted Subsidiaries in the ordinary course of business, (2) unfunded pension fund and other employee benefit plan obligations and liabilities to the extent that they are permitted to remain unfunded under applicable law, (3) contingent liabilities arising out of endorsements of checks and other negotiable instruments for deposit or collection in the ordinary course of business, and (4) reserves established by the Parent or any Restricted Subsidiary for litigation or tax contingencies;

 

(xx)                          Indebtedness in an amount not to exceed $50.0 million issued in lieu of cash payments of Restricted Payments permitted by clause (5) of Section 4.10(e) hereof; and

 

(xxi)                       the incurrence by the Parent or any Restricted Subsidiary of additional Indebtedness or the issuance by the Parent of Disqualified Stock or preferred stock in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (xxi), not to exceed the greater of (i) $500.0 million and (ii) 5.0% of Total Assets.

 

(c)                                  For purposes of determining compliance with this Section 4.09, in the event that an item of proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (i) through (xxi) of Section 4.09(b) as of the date of incurrence thereof or is entitled to be incurred pursuant to Section 4.09(a), the Parent shall, in its sole discretion, (x) at the time the proposed Indebtedness is incurred, classify all or a portion of that item of Indebtedness on the date of its incurrence under either Section 4.09(a) or under such category of Permitted Debt, as the case, may be, (y) reclassify at a later date all or a portion of that or any other item of Indebtedness as being or having been incurred in any manner that complies with this Section 4.09 (so long as the Indebtedness being reclassified could have been incurred under Section 4.09(a) or under such category of Permitted Debt, in each case on the date of its incurrence) and (z) elect to comply with this Section 4.09 and the applicable definitions in any order.  The accrual of interest, the accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, the reclassification of preferred stock as Indebtedness due to a change in accounting principles, and the payment of dividends on Disqualified Stock in the form of additional shares

 

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of the same class of Disqualified Stock will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock for purposes of this Section 4.09; *provided*, in each such case, that the amount of any such accrual, accretion or payment is included in the Fixed Charges as accrued.  Notwithstanding any other provision of this Section 4.09, the maximum amount of Indebtedness that the Parent or the Restricted Subsidiaries may incur pursuant to this Section 4.09 shall not be deemed to be exceeded solely as a result of fluctuations in exchange rates or currency values.

 

(d)                                 The Issuer shall not incur any Indebtedness that is contractually subordinate or junior in right of payment to any Indebtedness of the Issuer unless such Indebtedness is also contractually subordinated in right of payment to the Notes and the applicable Guarantee on substantially identical terms; *provided*,*however*, that no Indebtedness of the Issuer will be deemed to be contractually subordinated in right of payment solely by virtue of being unsecured or secured by a junior Lien or by virtue of being structurally subordinated.  No Guarantor shall incur any Indebtedness that is subordinate or junior in right of payment to the Indebtedness of such Guarantor unless such Indebtedness is also contractually subordinated in right of payment to the Notes and the applicable Guarantee on substantially identical terms; *provided*, *however*, that no Indebtedness of a Guarantor will be deemed to be contractually subordinated in right of payment solely by virtue of being unsecured or secured by a junior Lien.

 

Parent shall not permit any Unrestricted Subsidiary to incur any Indebtedness other than Non-Recourse Debt; *provided*, *however*, that if any such Indebtedness ceases to be Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be deemed to be an incurrence of Indebtedness by the obligors of such Indebtedness.

 

Section 4.10.                          Restricted Payments.Parent shall not, and shall not permit any of the Restricted Subsidiaries to, directly or indirectly:

 

(a)                                 declare or pay any dividend or make any other payment or distribution on account of the Parent’s or any Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Parent or any Restricted Subsidiary) or to the direct or indirect holders of the Parent’s or any Restricted Subsidiaries’ Equity Interests in their capacity as such (in each case other than dividends or distributions payable in the Parent’s Equity Interests (other than Disqualified Stock) or to the Parent or any Restricted Subsidiary);

 

(b)                                 purchase, redeem, defease or otherwise acquire or retire for value any of the Parent’s or the Restricted Subsidiaries’ Equity Interests (in each case other than any of the Restricted Subsidiaries’ Equity Interests owned by the Parent or another Restricted Subsidiary or for consideration consisting solely of the Parent’s Equity Interests other than Disqualified Stock);

 

(c)                                  make any payment on or with respect to, or purchase, redeem, repurchase, defease or otherwise acquire or retire for value any of the Parent’s or the Restricted Subsidiaries’ Subordinated Indebtedness (other than Subordinated Indebtedness owed to the Parent or any of the Restricted Subsidiaries), except (i) a payment of interest or principal at the Stated Maturity thereof, (ii) the purchase, repurchase or other acquisition of any such Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in

 

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each case, due within one year of the date of such purchase, repurchase or other acquisition, or (iii) for consideration consisting solely of Equity Interests of the Parent other than Disqualified Stock; or

 

(d)                                 make any Restricted Investment (all such payments and other actions set forth in these clauses (a) through (d) above being collectively referred to as “*Restricted Payments*”), unless, at the time of and after giving effect to such Restricted Payment:

 

(a)                                 no Default or Event of Default has occurred and is continuing or would occur as a consequence of such Restricted Payment;

 

(b)                                 Parent would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a); and

 

(c)                                  such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Parent and the Restricted Subsidiaries after the Issue Date (excluding Restricted Payments made pursuant to the next paragraph other than clauses (1), (7), (8), (12) and (13) of the next paragraph), is less than the sum, without duplication, of:

 

(i)                                     50% of the Consolidated Net Income of the Parent for the period (taken as one accounting period) from the beginning of the first full fiscal quarter of the Parent commencing immediately prior to January 21, 2011 to the end of the Parent’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), *plus*

 

(ii)                                  100% of the aggregate net cash proceeds or the fair value (as determined in good faith by the Board of Directors of the Parent) of property or assets received by the Parent or a Restricted Subsidiary after January 21, 2011 as a contribution to the common equity capital of the Parent or from the issue or sale of Equity Interests of the Parent (other than Disqualified Stock) or from the issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Parent that have been converted into or exchanged for such Equity Interests (other than Equity Interests or Disqualified Stock or debt securities sold to a Subsidiary of the Parent), together with the aggregate net cash and Cash Equivalents received by the Parent or any Restricted Subsidiary at the time of such conversion or exchange*provided, however*, that this clause shall not include the proceeds from Excluded Contributions, plus

 

(iii)                               to the extent that any Restricted Investment that was made after January 21, 2011 is sold for cash or otherwise liquidated or repaid for cash, the proceeds realized from the sale of such Restricted Investment and proceeds representing the return of the capital with respect to such Restricted Investment,

 

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in each case to the Parent or any Restricted Subsidiary, less the cost of the disposition of such Restricted Investment, *plus*

 

(iv)                              to the extent that any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary after January 21, 2011, the portion (proportionate to the Parent’s interest in such Unrestricted Subsidiary) of the fair market value of the net assets of the Unrestricted Subsidiary at the time such Unrestricted Subsidiary is designated a Restricted Subsidiary; *plus*

 

(v)                                 50% of any dividends received by the Parent or any Restricted Subsidiary from any Unrestricted Subsidiary to the extent the Parent’s or such Restricted Subsidiary’s Investment in such Unrestricted Subsidiary was a Restricted Investment, and to the extent such dividends were not otherwise included in the Consolidated Net Income of the Parent for such period.

 

(e)                                  The preceding provisions will not prohibit:

 

(1)                                 the payment of any dividend (or other distribution) or the consummation of any irrevocable redemption within 90 days after the date of declaration of the dividend (or other distribution) or giving of the redemption notice, as the case may be, if at the date of declaration or notice the dividend (or other distribution) payment or redemption would have complied with the provisions hereof;

 

(2)                                 the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to any Restricted Subsidiary) of, the Parent’s Equity Interests (other than Disqualified Stock) or from the substantially concurrent contribution of common equity capital to the Parent; *provided*that the amount of any such net cash proceeds that are utilized to make any such Restricted Payment will be excluded from clause (d)(c)(ii) of the preceding paragraph and shall not constitute Excluded Contributions;

 

(3)                                 the purchase, defeasance, redemption, repurchase or other acquisition or retirement of Subordinated Indebtedness of the Parent or any Restricted Subsidiary with (i) the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness or (ii) in exchange for, or out of the proceeds of a substantially concurrent Qualified Equity Offering;

 

(4)                                 in the case of a Restricted Subsidiary, the payment of dividends (or in the case of any partnership or limited liability company, any similar distribution) to the holders of its Capital Stock on a *pro rata*basis;

 

(5)                                 repurchases of Equity Interests deemed to occur upon the exercise of stock options, warrants or other convertible securities if such Equity Interests represent a portion of the exercise price thereof and repurchases of Equity Interests deemed to occur upon the withholding of a portion of the Equity

 

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Interests granted or awarded to an employee to pay for the taxes payable by such employee upon such grant or award, or the vesting thereof;

 

(6)                                 cash payments, in lieu of issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of the Parent or a Restricted Subsidiary;

 

(7)                                 the repurchase, redemption or other acquisition or retirement for value of any Subordinated Indebtedness following a Change of Control or Asset Sale, as applicable, after the Issuer shall have complied with the Section 4.18 and Section 4.12, as applicable, including the payment of the applicable purchase price;

 

(8)                                 the declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of Disqualified Stock of the Parent or any preferred stock of any Restricted Subsidiary of the Parent issued on or after the Issue Date in accordance with the Fixed Charge Coverage Ratio test described in Section 4.09(a) hereof;

 

(9) payments made as disclosed under the section “Use of Proceeds” in the Offering Memorandum ;

 

(10) the repurchase, redemption or other acquisition of the Equity Interests of Parent or any Restricted Subsidiary from Persons who are, or were formerly, employees, officers and directors of the Parent and its Subsidiaries and their Affiliates, heirs and executors; provided that the aggregate amount of all such repurchases pursuant to this clause (10) shall not exceed $25.0 million in any twelve month period;

 

(11) Restricted Payments that are made with Excluded Contributions;

 

(12) any Restricted Payments so long as the Leverage Ratio, at the time of each such Restricted Payment, after giving pro forma effect to such Restricted Payment, is no greater than 3.50 to 1.00; provided, however, that at the time of each such Restricted Payment, no Default shall have occurred and be continuing (or result therefrom); and

 

(13) so long as no Default has occurred and is continuing or would be caused thereby, other Restricted Payments in an aggregate amount since the Issue Date not to exceed $250.0 million.

 

The amount of all Restricted Payments (other than cash) will be the fair market value on the date of the Restricted Payment of the asset(s), property or securities proposed to be transferred or issued by the Parent or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment.  The fair market value of any assets or securities that are required to be valued by this Section 4.10 will be determined by the Board of Directors of the Issuer, whose resolutions with respect thereto will be delivered to the Trustee.

 

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For purposes of determining compliance with this Section 4.10, in the event that a proposed Restricted Payment (or a portion thereof) meets the criteria of more than one of the categories of Restricted Payments described in clauses (1) through (13) of Section 4.10(e), or is entitled to be incurred pursuant to Section 4.10(d), the Issuer will be entitled to classify or re-classify (based on circumstances existing on the date of such reclassification) such Restricted Payment or a portion thereof in any manner that complies with this covenant and such Restricted Payment will be treated as having been made pursuant to only such clause or clauses or the first paragraph of this covenant.

 

Section 4.11.                          Liens.

 

(a)                                 Parent shall not, and shall not permit any of the Restricted Subsidiaries to, directly or indirectly, create, incur, assume or suffer to exist any Lien of any kind securing Indebtedness, Attributable Debt or trade payables on any property, asset, or any proceeds therefrom (“*Primary Lien*”), now owned or hereafter acquired except Permitted Liens, unless:

 

(i)                                     in the case of Liens securing Subordinated Indebtedness, the Notes and related Guarantees are secured by a Lien on such property (including Capital Stock of a Restricted Subsidiary) or assets that are senior in priority to such Liens; and

 

(ii)                                  in the case of Liens securing Indebtedness, the Notes and related Guarantees are equally and ratably secured by a Lien on such property (including Capital Stock of a Restricted Subsidiary) or assets.

 

(b)                                 Any Lien created for the benefit of the Holders of the Notes pursuant to Section 4.11(a) shall automatically and unconditionally be released and discharged upon the release and discharge of the Primary Lien, without any further action on the part of any Person.

 

Section 4.12.                          Asset Sales.

 

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

 

(i)                                     Parent (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the fair market value of the assets sold, leased, transferred, conveyed or otherwise disposed of; and

 

(ii)                                  at least 75% of the consideration received in the Asset Sale by the Parent or such Restricted Subsidiary is in the form of cash, Cash Equivalents or Replacement Assets, or a combination thereof.

 

(b)                                 For purposes of this Section 4.12, each of the following will be deemed to be cash:

 

(i)                                     any liabilities of the Parent or any of the Restricted Subsidiaries, as shown on the Parent’s or such Restricted Subsidiary’s most recent balance sheet (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Guarantee), that are assumed by the transferee of any such assets and with respect to which the Parent or such Restricted Subsidiary is released from further liability;

 

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(ii)                                  any securities, notes or other obligations received by the Parent or any such Restricted Subsidiary from such transferee that are converted by the Parent or such Restricted Subsidiary into cash within 365 days of the consummation of such Asset Sale (subject to ordinary settlement periods), to the extent of the cash received in that conversion;

 

(iii)                               any Voting Stock or assets referred to in clauses (c)(ii) and (c)(iii) of this Section 4.12; and

 

(iv)                              any Designated Non-Cash Consideration received by the Parent or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value (as determined in good faith by the Parent’s Board of Directors), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iv) that is at such time outstanding, not to exceed an amount equal to the greater of (x) $250.0 million and (y) 2.5% of Total Assets at the time of the receipt of such Designated Non-Cash Consideration, with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value.

 

(c)                                  Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Parent or such Restricted Subsidiary may apply those Net Proceeds at its option:

 

(i)                                     to repay Indebtedness and other Obligations under any Credit Facility;

 

(ii)                                  to acquire all or substantially all of the assets of, or a majority of the Voting Stock of, another Permitted Business;

 

(iii)                               to make any capital expenditures or to acquire other long-term assets that are used or useful in a Permitted Business; or

 

(iv)                              any combination of the foregoing.

 

In the case of each of clauses (ii), (iii) and (iv) above, the entry into a definitive agreement to acquire such assets within 365 days after the receipt of any Net Proceeds from an Asset Sale shall be treated as a permitted application of the Net Proceeds from the date of such agreement so long as the Parent or such Restricted Subsidiary enters into such agreement with the good faith expectation that such Net Proceeds will be applied to satisfy such commitment within 180 days of the date of such agreement and such Net Proceeds are actually so applied within such period.

 

Pending the final application of any Net Proceeds, the Parent may temporarily reduce revolving credit borrowings under the Credit Agreement or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture.

 

(d)                                 Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.12(c) will constitute “*Excess Proceeds*”.  When the aggregate amount of Excess Proceeds exceeds $200.0 million, the Issuer shall make an Asset Sale Offer within 30 Business Days to all Holders of Notes and all holders of other Indebtedness of the Issuer or any Restricted

 

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Subsidiary that is *pari passu*with the Notes containing provisions similar to those set forth herein with respect to offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum principal amount of Notes and such other *pari passu*Indebtedness that may be purchased out of the Excess Proceeds.  The offer price in any Asset Sale Offer will be equal to 100% of the principal amount thereof plus accrued and unpaid interest and Additional Interest, if any, to the date of purchase, and shall be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Issuer may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture.  If the aggregate principal amount of Notes and other *pari passu*Indebtedness validly and properly tendered and not withdrawn pursuant to such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee will select the Notes and the Issuer or the trustee, agent or other similar party with respect to such other *pari passu*Indebtedness will select such Indebtedness to be purchased as described in Article 3 hereof.  Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.

 

Section 4.13.                          Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries.Parent shall not, and shall not permit the Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:

 

(a)                                 pay dividends or make any other distributions on or in respect of its Capital Stock to the Parent or any Restricted Subsidiary, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Parent or any other Restricted Subsidiary;

 

(b)                                 make any loans or advances to the Parent or any other Restricted Subsidiary;

 

(c)                                  transfer any of its properties or assets to the Parent or any other Restricted Subsidiary; or

 

(d)                                 guarantee the Parent’s or any Restricted Subsidiary’s Indebtedness.

 

However, the preceding restrictions will not apply to encumbrances or restrictions existing under or by reason of:

 

(i)                                     any Credit Facility (including the Credit Agreement and any other agreements as in effect on the Issue Date or subsequent agreements relating to Indebtedness of the Parent or any Restricted Subsidiary and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of those agreements; *provided*that the amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings are not materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the Issue Date unless in the good faith determination of the Board of Directors, such restrictions are not likely to result in the Issuer being unable to make scheduled payments of principal and interest on the Notes as they come due;

 

(ii)                                  this Indenture, the Notes and the Guarantees;

 

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(iii)                               applicable law, rules, regulations and orders;

 

(iv)                              any instrument governing Indebtedness or Capital Stock of a Person acquired by the Parent or any Restricted Subsidiary as in effect at the time of such acquisition, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired; *provided*that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;

 

(v)                                 customary non-assignment provisions in contracts, licenses and leases entered into in the ordinary course of business;

 

(vi)                              purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (c) of this Section 4.13;

 

(vii)                           any agreement for the sale or other disposition of a Restricted Subsidiary or all or substantially all of its assets that restricts distributions of assets by, or Equity Interests of, that Restricted Subsidiary pending its sale or other disposition;

 

(viii)                        Permitted Refinancing Indebtedness; *provided*that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;

 

(ix)                              Liens permitted to be incurred under Section 4.11 that limit the right of the debtor to dispose of the assets subject to such Liens;

 

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

 

(xi)                              provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale and leaseback transactions, stock sale agreements and other similar agreements entered into in the ordinary course of business or with the approval of the Issuer’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;

 

(xii)                           any encumbrance or restriction on the Parent’s ability or the ability of any Restricted Subsidiary to transfer its interest in any Investment not prohibited by Section 4.10 hereof;

 

(xiii)                        customary restrictions imposed on the transfer of, or in licenses related to, copyrights, patents or other intellectual property and contained in agreements entered into in the ordinary course of business;

 

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(xiv)                       any other agreement governing Indebtedness or Disqualified Stock entered into after the Issue Date that contains encumbrances and restrictions that are not more restrictive than would be permitted by clause (i) of this paragraph;

 

(xv)                          restrictions created in connection with any Qualified Securitization Financing that, in the good faith determination of the Board of Directors of the Parent, are necessary or advisable to effect such Qualified Securitization Financing; and

 

(xvi)                       agreements pursuant to any tax sharing arrangement between the Parent and any one or more direct or indirect Subsidiaries of the Parent.

 

Section 4.14.                          Transactions with Affiliates.Parent shall not, and shall not permit any of the Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of the Parent’s or the Restricted Subsidiaries’ respective properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate involving aggregate payments of consideration in excess of $25.0 million (each, an “*Affiliate Transaction*”), unless:

 

(a)                                 the Affiliate Transaction is on terms taken as a whole that are no less favorable to the Parent or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Parent or such Restricted Subsidiary with an unrelated Person; and

 

(b)                                 the Issuer delivers to the Trustee with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $50.0 million, a resolution of the Board of Directors of the Parent set forth in an Officer’s Certificate certifying that such Affiliate Transaction complies with this Section 4.14 and that such Affiliate Transaction has been approved by a majority of the Parent’s Board of Directors (and, if any, a majority of the disinterested members of the Parent’s Board of Directors with respect to such transaction).

 

The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of the prior paragraph:

 

(A)                               any customary consulting or employment agreement or arrangement, benefit arrangement or plan, incentive compensation plan, stock option or stock ownership plan, employee benefit plan, severance or termination arrangements, expense reimbursement arrangements, officer or director indemnification agreement or any similar arrangement entered into by the Parent or any of the Restricted Subsidiaries for the benefit of the Parent’s or such Restricted Subsidiary’s directors, officers, employees and consultants and payments and transactions pursuant thereto, in each case, in the ordinary course of business;

 

(B)                               transactions between or among the Parent and/or the Restricted Subsidiaries;

 

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(C)                               payment of reasonable directors compensation and indemnification costs permitted by the Parent’s and the Restricted Subsidiaries’ organizational documents for the benefit of directors, officers and employees, in each case, in the ordinary course of business;

 

(D)                               Permitted Investments or Restricted Payments that are permitted by Section 4.10;

 

(E)                                any agreement (including any certificate of designations relating to Capital Stock) as in effect as of the Issue Date or any amendment thereto or any transaction contemplated thereby (including pursuant to any amendment thereto) in any replacement agreement thereto so long as any such amendment or replacement agreement is not more disadvantageous to the Holders in any material respect than the original agreement as in effect on the Issue Date;

 

(F)                                 the granting or performance of customary registration rights in respect of restricted Equity Interests held or acquired by Affiliates;

 

(G)                               loans and advances to employees in the ordinary course of business not to exceed $40.0 million in the aggregate amount at any one time outstanding;

 

(H)                              the consummation of the Transactions and the payment of all fees, expenses and other amounts, and the performance of all obligations of the Parent and the Restricted Subsidiaries, in connection therewith;

 

(I)                                   transactions with customers, clients, suppliers or purchasers or sellers of goods or services, in each case, in the ordinary course of business and consistent with past practice and on terms that are not materially less favorable to the Parent or such Restricted Subsidiary, as the case may be, determined in good faith by the Parent, that those that could be obtained in a comparable arm’s-length transaction with a Person that is not an Affiliate of the Parent;

 

(J)                                   the issuance or repurchase of Equity Interests (other than Disqualified Stock) of the Parent to any Affiliate of the Parent;

 

(K)                              licenses of, or other grants of rights to use, intellectual property granted by the Parent or any Restricted Subsidiary in the ordinary course of business; and

 

(L)                                any transaction disclosed under the section “Certain Relationships and Related Party Transactions” in the Offering Memorandum.

 

Section 4.15.                          [Reserved]

 

Section 4.16.                          [Reserved]

 

Section 4.17.                          Designation of Restricted and Unrestricted Subsidiaries.The Board of Directors of the Parent may designate any Restricted Subsidiary (other than the Issuer) to be an Unrestricted Subsidiary if that designation would not cause a Default.  If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate fair market value of all outstanding

 

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Investments owned by the Parent and the Restricted Subsidiaries in the Subsidiary properly designated will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under the first paragraph of Section 4.10 or Permitted Investments, as determined by the Issuer.  That designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.  The Board of Directors of the Parent may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if the redesignation would not cause a Default.

 

Section 4.18.                          Repurchase at the Option of Holders Upon a Change of Control.

 

(a)                                 Upon the occurrence of a Change of Control, the Issuer shall make an offer to purchase (the “*Change of Control Offer*”) all Notes, and each Holder shall have the right to require the Issuer to repurchase all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes, pursuant to the offer described below at a purchase price (the “*Change of Control Payment*”) equal to 101% of the principal amount thereof, *plus*accrued and unpaid interest and Additional Interest, if any, to the purchase date (subject to the right of Holders on the relevant record date to receive interest due on the relevant interest payment date).  The Issuer shall purchase all Notes validly tendered pursuant to the Change of Control Offer and not withdrawn.

 

Subject to clause (c) below, within 30 days following any Change of Control or, at the Issuer’s option, prior to any Change of Control, but after public announcement of the transaction that constitutes or may constitute the Change of Control, the Issuer shall send a notice, by first-class mail, with a copy to the Trustee, to each Holder, at such Holder’s address appearing in the securities register maintained in respect of the Notes by the Registrar (the “*Security Register*”), stating:

 

(i)                                     that a Change of Control has occurred or may occur and a Change of Control Offer is being made pursuant to Section 4.18 and that all Notes timely tendered will be accepted for payment;

 

(ii)                                  the Change of Control Payment and the purchase date, which shall be, subject to any contrary requirements of applicable law, a Business Day no earlier than 30 days nor later than 60 days from the date such notice is mailed;

 

(iii)                               the circumstances and relevant facts regarding the Change of Control; and

 

(iv)                              the procedures that Holders must follow in order to tender their Notes (or portions thereof) for payment, and the procedures that Holders must follow in order to withdraw an election to tender Notes (or portions thereof) for payment.

 

The Issuer shall 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.  To the extent that the provisions of any securities laws or regulations conflict with this Section 4.18, the Issuer shall comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 4.18 by virtue of such compliance.

 

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The notice will, if mailed prior to the date of consummation of the Control of Control, state that the Change of Control Offer is conditioned on the Change of Control occurring on or prior to the applicable Change of Control Payment date specified in the notice.

 

(b)                                 On the Change of Control Payment date, the Issuer shall, to the extent lawful:

 

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

 

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

 

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

 

The Paying Agent shall promptly mail (or wire) to each Holder of Notes validly and properly tendered and not withdrawn the Change of Control Payment for such Notes, and the Trustee will promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; *provided*that each new Note will be in a principal amount of $200,000 or an integral multiple of $1,000 in excess thereof.

 

The Issuer shall publicly announce the results of a Change of Control Offer on or as soon as practicable after the Change of Control Payment date.

 

(c)                                  The provisions described above that require the Issuer to make a Change of Control Offer following a Change of Control will be applicable whether or not any other provisions of this Indenture are applicable, except as provided under Article 8. Except as described above with respect to a Change of Control, this Indenture does not contain provisions that permit the Holders of the Notes to require that the Issuer repurchase or redeem the Notes in the event of a takeover, spin-off, recapitalization or similar transaction.

 

(d)                                 The Issuer will not be required to make a Change of Control Offer upon a Change of Control if (i) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly and properly tendered and not withdrawn under the Change of Control Offer, (ii) notice of redemption of all of the Notes has been given pursuant to Section 3.03 and Section 3.04, unless and until there is a Default in payment of the applicable redemption price, or (iii) in connection with or in contemplation of any Change of Control for which a definitive agreement is entered into, the Issuer or a third party has made an offer to purchase (an “*Alternate Offer*”) any and all Notes validly and properly tendered at a cash price equal to or higher than the Change of Control Payment and has purchased all Notes validly and properly tendered and not withdrawn in accordance with the terms of such Alternate Offer; *provided*that the terms of such Alternate Offer shall not require Holders to irrevocably tender any Notes and such Alternate Offer shall not close unless and until the Change of Control is actually consummated.

 

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(e)                                  The provisions of this Section 4.18 may, prior to the occurrence of a Change of Control, be waived or modified with the consent of the Holders of at least a majority in principal amount of the then outstanding Notes.  Following the occurrence of a Change of Control, any change, amendment or modification in any material respect of the obligation of the Issuer to make and consummate a Change of Control Offer may only be effected with the consent of each holder affected thereby.

 

(f)                                   If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not withdraw such Notes in response to a Change of Control Offer and the Issuer, or any third party making the Change of Control Offer in lieu of the Issuer as described above, purchases all of the Notes validly tendered and not withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 30 days no more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued but unpaid interest to but not including the date of redemption set forth in such notice.

 

Section 4.19.                          Additional Guarantees.If the Parent or any Restricted Subsidiary acquires or creates another Restricted Subsidiary (other than an Immaterial Subsidiary) after the Issue Date that guarantees any Obligations under any Credit Facility, then that newly acquired or created Restricted Subsidiary shall execute and deliver to the Trustee a supplemental Indenture substantially in the form of Exhibit F hereto providing for a Guarantee and deliver an Opinion of Counsel satisfactory to the Trustee as to the due authorization, execution and delivery and the enforceability of such Guarantee within 45 Business Days of the date on which it was acquired or created.

 

Section 4.20.                          Covenant Suspension.(a)        If on any date following the Issue Date (i) the Notes have an Investment Grade Rating from either Rating Agency, and (ii) no Default has occurred and is continuing under this Indenture (the occurrence of the events described in the foregoing clauses (i) and (ii) being collectively referred to as a “*Covenant Suspension Event*” and the date of such Covenant Suspension Event, as the “*Suspension Date*”), then the Issuer, the Parent and the Restricted Subsidiaries will not be subject to Section 4.09, Section 4.10, Section 4.12, Section 4.13, Section 4.14, Section 4.17, Section  5.01(a)(iv) and Section 5.01(b)(iii) (collectively, the “*Suspended Covenants*”).

 

(b)                                 In the event that the Parent and the Restricted Subsidiaries are not subject to the Suspended Covenants under this Indenture for any period of time as a result of clause (a) above, and on any subsequent date (the “*Reversion Date*”) one or both of the Rating Agencies withdraw their Investment Grade Rating or downgrade the rating assigned to the Notes below an Investment Grade Rating, then the Parent and the Restricted Subsidiaries shall thereafter again be subject to the Suspended Covenants under this Indenture with respect to future events.

 

(c)                                  The period of time between the Suspension Date and the Reversion Date is referred to as the “*Suspension Period*”.  Additionally, upon the occurrence of a Covenant Suspension Event, the amount of Excess Proceeds from Net Proceeds shall be reset at zero.  In the event of any such reinstatement of the Suspended Covenants, no action taken or omitted to be taken by the Parent or any of the Restricted Subsidiaries prior to such reinstatement will give rise

 

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to a Default or Event of Default under this Indenture; provided that (1) with respect to Restricted Payments made after any such reinstatement, the amount of Restricted Payments made will be calculated as though the covenant described under Section 4.10 had been in effect prior to, but not during the Suspension Period; *provided*that no Subsidiaries may be designated as Unrestricted Subsidiaries during the Suspension Period and (2) all Indebtedness incurred, or Disqualified Stock or Preferred Stock issued, during the Suspension Period will be classified to have been incurred or issued pursuant to clause (ii) of Section 4.09(b).

 

(d)                                 The Issuer shall provide an Officer’s Certificate to the Trustee notifying the Trustee of a Covenant Suspension Event or a reversion thereof, including the relevant Suspension Date or Reversion Date, as applicable.

 

Section 4.21.                          Additional Amounts.

 

(a)                                 All payments made by the Issuer or any Guarantor that is not formed or incorporated under the laws of the United States or any State of the United States or the District of Columbia (each such Guarantor, a “*non-U.S. Guarantor*”) under or with respect to the Notes or such non-U.S. Guarantor’s Guarantee will be made free and clear of and without withholding or deduction for or on account of any present or future Taxes imposed or levied by or on behalf of any Taxing Authority within Spain, Ireland, or any other jurisdiction in which the Issuer or such non-U.S. Guarantor is organized, resident or doing business for tax purposes or within or through which payment is made or any political subdivision or Taxing Authority or agency thereof or therein (any of the aforementioned being a “*Taxing Jurisdiction*”), unless the Issuer or such non-U.S. Guarantor is required to withhold or deduct Taxes by law or by the interpretation or administration thereof.  If the Issuer or any non-U.S. Guarantor is required to withhold or deduct any amount for or on account of Taxes imposed by a Taxing Authority within Spain, Ireland, or any other Taxing Jurisdiction, from any payment made under or with respect to the Notes or the Guarantee of such non-U.S. Guarantor, the Issuer or such non-U.S. Guarantor will pay such additional amounts (“*Additional Amounts*”) as may be necessary so that the net amount received by each Holder of Notes (including Additional Amounts) after such withholding or deduction will equal the amount the Holder would have received if such Taxes had not been withheld or deducted; *provided*, *however*, that no Additional Amounts will be payable with respect to:

 

(1)                                 any Tax imposed by the United States or by any political subdivision or Taxing Authority thereof or therein;

 

(2)                                 any Taxes that would not have been so imposed, deducted or withheld but for the existence of any connection between the Holder or beneficial owner of a Note (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of power over, the Holder or beneficial owner of such Note, if the Holder or beneficial owner is an estate, nominee, trust, partnership or corporation) and the relevant Taxing Jurisdiction (other than the mere receipt of such payment or the ownership or holding of the execution, delivery, registration or enforcement of such note);

 

(3)                                 any estate, inheritance, gift, sales, excise, transfer or personal property Tax or similar Tax, assessment or governmental charge, subject to Section 4.21(d) below;

 

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(4)                             any Taxes payable other than by deduction or withholding from payments under or with respect to the Guarantee by any non-U.S. Guarantor of such Note;

 

(5)                                 any Taxes that would not have been so imposed, deducted or withheld if the Holder or beneficial owner of a Note or beneficial owner of any payment on the Note or the Guarantee of such Note had (i) made a declaration of non-residence, or any other claim or filing for exemption, to which it is entitled or (ii) complied with any certification, identification, information, documentation or other reporting requirement concerning the nationality, residence, identity or connection with the relevant Taxing Jurisdiction of such Holder or beneficial owner of such Note or any payment on such Note (*provided*that (x) such declaration of non-residence or other claim or filing for exemption or such compliance is required by the applicable law of the Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of the imposition, deduction or withholding of, such Taxes and (y) at least 30 days prior to the first payment date with respect to which such declaration of non-residence or other claim or filing for exemption or such compliance is required under the applicable law of the Taxing Jurisdiction, Holders at that time have been notified by the Issuer or such Guarantor or any other Person through whom payment may be made that a declaration of non-residence or other claim or filing for exemption or such compliance is required to be made);

 

(6)                                 any Taxes that would not have been so imposed, deducted or withheld if the beneficiary of the payment had presented the Note for payment within 30 days after the date on which such payment or such note became due and payable or the date on which payment thereof is duly provided for, whichever is later (except to the extent that the Holder would have been entitled to Additional Amounts had the Note been presented on the last day of such 30-day period);

 

(7)                                 any payment under or with respect to a Note to any Holder that is a fiduciary or partnership or any Person other than the sole beneficial owner of such payment or Note, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such partnership or the beneficial owner of such payment or Note would not have been entitled to the Additional Amounts, or to a reduced amount of Additional Amounts, had such beneficiary, settlor, member or beneficial owner been the actual Holder of such Note;

 

(8)                                 any withholding or deduction in respect of any Tax, duty, assessment or other governmental charge where such withholding or deduction is imposed or levied on a payment to an individual and is required to be made pursuant to European Council Directive 2003/48/EC or any other Directive implementing the conclusions of the ECOFIN Council meeting of November 26-27, 2000 on the taxation of savings income or any law implementing or complying with, or introduced in order to conform to, such Directives; or

 

(9)                                 any combination of items (1) through (8) of this Section 4.21(a).

 

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(b)                                 The Issuer and each applicable non-U.S. Guarantor will also make any applicable withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law.  The Issuer and each applicable non-U.S. Guarantor will furnish to the Trustee, within 60 days after the date the payment of any Taxes deducted or withheld is due pursuant to applicable law, certified copies of tax receipts or, if such tax receipts are not reasonably available to the Issuer and such non-U.S.  Guarantor, such other documentation that provides reasonable evidence of such payment by the Issuer and such non-U.S. Guarantor.  Copies of such tax receipts or, if such tax receipts are not reasonably available, such other documentation will be made available to the Holders or the Paying Agent, as applicable, upon request.

 

(c)                                  At least 30 days prior to each date on which any payment under or with respect to the Notes or any Guarantee is due and payable, if the Issuer or any non-U.S. Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Issuer or such non-U.S. Guarantor will deliver to the Trustee and the Paying Agent an Officer’s Certificate stating the fact that such Additional Amounts will be payable and the amounts so payable and will set forth such other information necessary to enable such Trustee and Paying Agent to pay such Additional Amounts to Holders of such Notes on the applicable payment date, unless such obligation to pay Additional Amounts arises after the 30th day prior to such date, in which case it shall be promptly paid thereafter.

 

(d)                                 The Issuer and each non-U.S. Guarantor will pay any present or future stamp, court or documentary Taxes or any other excise or property Taxes, charges or similar levies that arise in any jurisdiction from the execution, delivery, enforcement or registration of their respective Obligations and Guarantees of the Notes, this Indenture or any other document or instrument in relation thereto, excluding all such Taxes, charges or similar levies imposed by any jurisdiction outside the United States in which the Issuer or any non-U.S. Guarantor or any successor Person is organized or resident for tax purposes or any jurisdiction in which a paying agent is located, and the Issuer and each non-U.S. Guarantor will agree to indemnify the Holders of the Notes for any such non-excluded taxes paid by such Holders.

 

(e)                                  The foregoing provisions of this Section 4.21 shall survive any termination or discharge of this Indenture and payment of the Notes and shall apply *mutatis mutandis*to any Taxing Jurisdiction with respect to any successor Person to the Issuer or a non-U.S. Guarantor.

 

(f)                                   Whenever in this Indenture there is mentioned, in any context, the payment of principal, premium, if any, interest or of any other amount payable under or with respect to any note, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.

 

Section 4.22.                          Maintenance of Listing.The Issuer will use its commercially reasonable efforts to maintain the listing of the Notes on the official list of the Irish Stock Exchange and trading on its Global Exchange Market for so long as such Notes are outstanding; provided that if at any time the Issuer determines that it will not maintain such listing, it will obtain prior to the delisting of the Notes from the official list of the Irish Stock Exchange, and thereafter use its commercially

 

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reasonable efforts to maintain, a listing of such Notes on another recognized stock exchange or exchange regulated market in western Europe. The Issuer will notify the Trustee in writing of any delisting or change in listing within 5 Business Days of such delisting or change in listing.

 

**ARTICLE 5**

 

**SUCCESSORS**

 

Section 5.01.                          Merger, Consolidation or Sale of Assets.

 

(a)                                 The Issuer shall not, directly or indirectly:  (1) consolidate or merge with or into another Person (whether or not the Issuer is the surviving entity) or (2) sell, assign, transfer, lease, convey (not including any conveyance, if any, resulting solely from the creation of any Lien, unless remedies are exercised in connection therewith) or otherwise dispose of all or substantially all of the properties and assets of the Issuer or its Restricted Subsidiaries, taken as a whole, in one or more related transactions, to another Person or Persons, unless:

 

(i)                                     either:  (x) the Issuer is the surviving entity; or (y) the Person formed by or surviving any such consolidation or merger (if other than the Issuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made is a corporation, limited partnership or limited liability company organized or existing under the laws of any member state of the European Union as in effect on December 31, 2003, Switzerland, Canada, any state of the United States or the District of Columbia;

 

(ii)                                  the Person formed by or surviving any such consolidation or merger (if other than the Issuer) or the Person to which such sale, assignment, transfer, conveyance or other disposition has been made assumes all of the obligations of the Issuer under the Notes and this Indenture pursuant to an agreement in a form reasonably satisfactory to the Trustee;

 

(iii)                               immediately after such transaction, on a pro forma basis, no Default or Event of Default exists; and

 

(iv)                              the Issuer or the Person formed by or surviving any such consolidation or merger (if other than the Issuer), or to which such sale, assignment, transfer, conveyance or other disposition has been made will, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, (i) be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a) or (ii) the Parent’s Fixed Charge Coverage Ratio shall not be less than the Parent’s Fixed Charge Coverage Ratio immediately prior to such transaction or series of transactions.

 

Clauses (iii) and (iv) of this Section 5.01(a) will not apply to:

 

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(1)                                 a merger of the Issuer with an Affiliate solely for the purpose of reincorporating the Issuer in another jurisdiction; or

 

(2)                                 any consolidation or merger, or any sale, assignment, transfer, conveyance, lease or other disposition of assets by a Restricted Subsidiary to the Parent or any other Restricted Subsidiary.

 

(b)                                 The Parent shall not, directly or indirectly:  (1) consolidate or merge with or into another Person (whether or not the Parent is the surviving entity) or (2) sell, assign, transfer, convey (not including any conveyance, if any, resulting solely from the creation of any Lien, unless remedies are exercised in connection therewith) or otherwise dispose of all or substantially all of the properties and assets of the Parent and the Restricted Subsidiaries, taken as a whole, in one or more related transactions, to another Person or Persons, unless:

 

(i)                                     the Person formed by or surviving any such consolidation or merger (if other than the Parent) or the Person to which such sale, assignment, lease, transfer, conveyance or other disposition has been made assumes all obligations of the Parent under its Guarantee and this Indenture pursuant to an agreement in a form reasonably satisfactory to the Trustee;

 

(ii)                                  immediately after such transaction, on a pro forma basis, no Default or Event of Default exists; and

 

(iii)                               Parent or the Person formed by or surviving any such consolidation or merger (if other than Parent), or to which such sale, assignment, transfer, conveyance or other disposition has been made would, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, (i) be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a) or (ii) Parent’s Fixed Charge Coverage Ratio shall not be less than Parent’s Fixed Charge Coverage Ratio immediately prior to such transaction or series of transactions.

 

In addition, Parent and the Restricted Subsidiaries may not, directly or indirectly, lease all or substantially all of Parent’s and the Restricted Subsidiaries’ properties and assets, in one or more related transactions, to any other Person.

 

Clauses (ii) and (iii) of this Section 5.01(b) will not apply to:

 

(1)                                 a merger of the Parent with an Affiliate solely for the purpose of reincorporating the Parent in another jurisdiction; or

 

(2)                                 any consolidation or merger, or any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Parent and the Restricted Subsidiaries.

 

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Section 5.02.                          Successor Company Substituted.

 

The Person formed by or surviving any consolidation or merger (if other than the Parent or Issuer) shall succeed to, and be substituted for, and may exercise every right and power of the Parent or the Issuer, as applicable, under this Indenture; *provided*that, neither the Parent nor the Issuer shall be released in the case of a lease of all or substantially all the Parent’s or the Issuer’s assets, as applicable.

 

**ARTICLE 6**

 

**DEFAULTS AND REMEDIES**

 

Section 6.01.                          Events of Default.Each of the following is an “*Event of Default*”:

 

(i)                                     default for 30 days in the payment when due of interest on, or Additional Interest with respect to, the Notes;

 

(ii)                                  default in payment when due of the principal of or premium, if any, on the Notes;

 

(iii)                               failure by the Parent or any Restricted Subsidiary to comply with Section 5.01 or with Section 4.18;

 

(iv)                              failure by the Parent or any Restricted Subsidiary for 60 days after notice to comply with any other covenant or agreement in this Indenture or the Notes after written notice thereof is given to the Issuer by the Trustee or the Parent and the Restricted Subsidiaries and to the Trustee by Holders of at least 25% in aggregate principal amount of the then outstanding Notes voting as a single class;

 

(v)                                 default under any agreement, bond, mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by the Parent or any Restricted Subsidiary (or the payment of which is guaranteed by the Parent or any Restricted Subsidiary) whether such Indebtedness or guarantee now exists, or is created after the Issue Date, if that default:

 

(A)                               is caused by a failure to pay any scheduled installment of principal on such Indebtedness prior to the expiration of the grace period provided in such Indebtedness on the date of such default (a “*Payment Default*”); or

 

(B)                               results in the acceleration of such Indebtedness prior to its express maturity,

 

and, in each case, the principal amount of any such Indebtedness, together with the principal amount of any other such Indebtedness under which there has been a Payment Default or the maturity of which has been so accelerated, aggregates $250.0 million or more; *provided*, *however*, where (i) neither the Parent nor any Restricted Subsidiary has general liability with respect to such Indebtedness, and (ii) the creditor has agreed in writing that such creditor’s recourse is solely to specified assets or Unrestricted Subsidiaries, the amount of such Indebtedness shall be deemed to be the lesser of (x) the

 

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principal amount of such Indebtedness, and (y) the fair market value of such specified assets to which the creditor has recourse;

 

(vi)                              failure by the Parent, the Issuer or any Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary to pay final and non-appealable judgments entered by a court or courts of competent jurisdiction aggregating in excess of $250.0 million (net of any amounts covered by insurance), which judgments are not paid, discharged or stayed for a period of 60 days;

 

(vii)                           except as permitted by this Indenture, any Guarantee of a Significant Subsidiary, or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or any Guarantor that is a Significant Subsidiary, or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, or any Person acting on behalf of any Guarantor that is a Significant Subsidiary, or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, shall deny or disaffirm in writing its obligations under its Guarantee; and

 

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

 

(A)                               commences a voluntary case,

 

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

 

(C)                               consents to the appointment of a custodian of it or for all or substantially all of its property,

 

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

 

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

 

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

 

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

 

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

 

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(C)                               orders the liquidation of the Parent, the Issuer or any Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary; and

 

(D)                               the order or decree remains unstayed and in effect for 60 consecutive days.

 

Section 6.02.                          AccelerationIf an Event of Default (other than an Event of Default specified in clauses (viii) or (ix) of Section 6.01 hereof, with respect to the Parent or the Issuer), shall have occurred and be continuing, the Trustee or the Holders of not less than 25% in aggregate principal amount of the Notes then outstanding may declare to be immediately due and payable the principal amount of all the Notes then outstanding, plus accrued but unpaid interest and Additional Interest, if any, to the date of acceleration.  In the case of an Event of Default specified in clauses (viii) or (ix) of Section 6.01 hereof, with respect to the Parent or the Issuer shall occur, such amount with respect to all the Notes will become due and payable immediately without any declaration or other act on the part of the Trustee or the Holders.  Holders may not enforce this Indenture or the Notes except as provided in this Indenture.  Subject to the limitations described in this Article 6, 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 notice of any continuing Default or Event of Default (except a Default or Event of Default relating to the payment of principal, premium, if any, or interest or Additional Interest, if any) if it determines that withholding notice is in their interest.

 

Section 6.03.                          Other Remedies.

 

If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy to collect the payment of principal, premium, if any, and interest and Additional Interest, if any, on the Notes or to enforce the performance of any provision of the Notes or this Indenture.

 

The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding.  A delay or omission by the Trustee or any Holder in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default.  All remedies are cumulative to the extent permitted by law.

 

Section 6.04.                          Waiver of Past Defaults.Holders of not less than a majority in aggregate principal amount of the then outstanding Notes by notice to the Trustee may on behalf of the Holders of all of the Notes waive an existing Default or Event of Default and its consequences hereunder, except a continuing Default or Event of Default in the payment of the principal of, premium, if any, or interest or Additional Interest on, the Notes; *provided*, *however*, that after any acceleration, but before a judgment or decree based on acceleration is obtained by the Trustee, the Holders of a majority in aggregate principal amount of the Notes then outstanding may rescind and annul such acceleration if all Events of Default, other than the nonpayment of accelerated principal, premium or interest or Additional Interest, have been cured or waived as provided in this Indenture.  Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured for every purpose of this

 

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Indenture; but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.

 

Section 6.05.                          Control by Majority.Subject to Section 7.01, in case an Event of Default shall occur and be continuing, the Trustee will be under no obligation to exercise any of its rights or powers under this Indenture at the request or direction of any of the Holders, unless such Holders shall have offered to the Trustee reasonable indemnity or security against any loss, liability or expense.  Subject to Section 7.07, the Holders of a majority in aggregate principal amount of the Notes then outstanding will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee with respect to the Notes.

 

Section 6.06.                          Limitation on Suits.No Holder will have any right to institute any proceeding with respect to this Indenture, or for the appointment of a receiver or trustee, or for any remedy thereunder, unless:

 

(a)                                 such Holder has previously given the Trustee notice that an Event of Default is continuing;

 

(b)                                 Holders of at least 25% in aggregate principal amount of the then outstanding Notes have requested the Trustee to pursue the remedy;

 

(c)                                  such Holders have offered, and, if requested, have provided, the Trustee security or indemnity reasonably satisfactory to it against any loss, liability or expense;

 

(d)                                 the Trustee has not complied with such request within 60 days after the receipt of the request and the offer of security or indemnity; and

 

(e)                                  Holders of a majority in aggregate principal amount of the then outstanding Notes have not given the Trustee a direction inconsistent with such request within such 60-day period.

 

The preceding limitations do not apply to a suit instituted by a Holder for enforcement of payment of the principal of, and premium, if any, or interest or Additional Interest on, a Note on or after the respective due dates expressed in such Note.

 

A Holder may not use this Indenture to affect, disturb or prejudice the rights of another Holder or to obtain a preference or priority over another Holder.

 

Section 6.07.                          Rights of Holders to Receive Payment.Notwithstanding any other provision of this Indenture, the right of any Holder to receive payment of principal, premium, if any, and interest and Additional Interest, if any, on the Note, on or after the respective due dates expressed in the Note (including in connection with an offer to purchase), or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder.

 

Section 6.08.                          Collection Suit by Trustee.If an Event of Default specified in clauses (i) or (ii) of Section 6.01 occurs and is continuing, the Trustee is authorized to recover judgment in its own name and as trustee of an express trust against the Issuer for the whole amount of principal

 

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of, premium, if any, and interest and Additional Interest, if any, remaining unpaid on the Notes and interest on overdue principal and, to the extent lawful, interest and such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.

 

Section 6.09.                          Trustee May File Proofs of Claim.The Trustee is authorized to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and the Holders allowed in any judicial proceedings relative to the Issuer (or any other obligor upon the Notes), its creditors or its property and shall be entitled and empowered to participate as a member, voting or otherwise, of any official committee of creditors appointed in such matter and shall be entitled and empowered to collect, receive and distribute any money or other property payable or deliverable on any such claims and any custodian in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee, and in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07 hereof.  To the extent that the payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07 hereof out of the estate in any such proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other properties that the Holders may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise.  Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.

 

Section 6.10.                          Priorities.If the Trustee collects any money pursuant to this Article 6, it shall pay out the money in the following order:

 

*First*:  to the Trustee, its agents and attorneys for amounts due under Section 7.07 hereof, including payment of all compensation, expenses and liabilities incurred, and all advances made, by the Trustee and the costs and expenses of collection;

 

*Second*:  to Holders for amounts due and unpaid on the Notes for principal, premium, if any, and interest and Additional Interest, if any, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal, premium, if any, and interest and Additional Interest, if any, respectively; and

 

*Third*:  to the Issuer or to such party as a court of competent jurisdiction shall direct.

 

The Trustee may fix a record date and payment date for any payment to Holders pursuant to this Section 6.10.

 

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Section 6.11.                          Undertaking for Costs.In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant.  This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.07 hereof, or a suit by Holders of more than 10% in principal amount of the then outstanding Notes.

 

**ARTICLE 7**

 

**TRUSTEE**

 

Section 7.01.                          Duties of Trustee.

 

(a)                                 If an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs.

 

(b)                                 Except during the continuance of an Event of Default:

 

(1)                                 the duties of the Trustee shall be determined solely by the express provisions of this Indenture and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and

 

(2)                                 in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; *provided*, *however*, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein or otherwise verify the contents thereof).

 

(c)                                  The Trustee may not be relieved from liabilities for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:

 

(1)                                 this paragraph does not limit the effect of paragraph (b) of this Section;

 

(2)                                 the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and

 

(3)                                 the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.05 hereof.

 

(d)                                 Whether or not therein expressly so provided, every provision of this Indenture that in any way relates to the Trustee is subject to this Section.

 

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(e)                                  No provision of this Indenture shall require the Trustee to expend or risk its own funds or incur any liability and the Trustee shall be under no obligation to exercise any of its rights and powers under this Indenture at the request of any Holders, unless such Holder shall have offered to the Trustee security and indemnity satisfactory to it against any loss, liability or expense.

 

(f)                                   The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Issuer.  Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.

 

Section 7.02.                          Rights of Trustee.

 

(a)                                 The Trustee may conclusively rely upon any document believed by it to be genuine and to have been signed or presented by the proper Person.  The Trustee need not investigate any fact or matter stated in the document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Issuer, personally or by agent or attorney at the sole cost of the Issuer and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation.

 

(b)                                 Before the Trustee acts or refrains from acting, it may require an Officer’s Certificate or an Opinion of Counsel or both.  The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officer’s Certificate or Opinion of Counsel.  The Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.

 

(c)                                  The Trustee may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any agent appointed with due care.

 

(d)                                 The Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within the rights or powers conferred upon it by this Indenture.

 

(e)                                  Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Issuer shall be sufficient if signed by two Officers of the Issuer.

 

(f)                                   The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders unless such Holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities that might be incurred by it in compliance with such request or direction.

 

(g)                                  The Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has written notice of any event which is in fact such a Default or Event of Default is received by a Responsible Officer of the Trustee at the Corporate Trust Office of the Trustee, and such notice references the specific Default or Event of Default, the Notes and this Indenture.

 

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(h)                                 The Trustee shall not be required to give any bond or surety in respect of the performance of its power and duties hereunder.

 

(i)                                     The Trustee shall have no duty to inquire as to the performance of the Issuer’s covenants herein.

 

(j)                                    Any request or direction of the Issuer mentioned herein shall be sufficiently evidenced by an Issuer request or Issuer order and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution.

 

(k)                                 In no event shall the Trustee be responsible or liable for special, punitive, indirect, or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.

 

(l)                                     The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder.

 

(m)                             The Trustee may request that the Issuer deliver a certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture.

 

(n)                                 In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.

 

Section 7.03.                          Individual Rights of Trustee.The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Issuer or any Affiliate of the Issuer with the same rights it would have if it were not Trustee.  However, in the event that the Trustee acquires any conflicting interest it must eliminate such conflict within 90 days, apply to the SEC for permission to continue as Trustee or resign.  Any Agent may do the same with like rights and duties.  The Trustee is also subject to Sections 7.10 and 7.11 hereof.

 

Section 7.04.                          Trustee’s Disclaimer.The Trustee shall not be responsible for and makes no representation as to the validity or adequacy of this Indenture or the Notes, it shall not be accountable for the Issuer’s use of the proceeds from the Notes or any money paid to the Issuer or upon the Issuer’s direction under any provision of this Indenture, it shall not be responsible for the use or application of any money received by any Paying Agent other than the Trustee, and it shall not be responsible for any statement or recital herein or any statement in the Notes or any other document in connection with the sale of the Notes or pursuant to this Indenture other than its certificate of authentication.

 

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Section 7.05.                          Notice of Defaults.If a Default or Event of Default occurs and is continuing and if it is known to the Trustee, the Trustee shall mail to Holders a notice of the Default or Event of Default within 90 days after such Default or Event of Default becomes known to the Trustee unless such Default or Event of Default has since been cured.  Except in the case of a Default or Event of Default in payment of principal of, premium, if any, or interest or Additional Interest, if any, on any Note, the Trustee may withhold the notice if and so long as a committee of its Responsible Officers in good faith determines that withholding the notice is in the interests of the Holders.

 

Section 7.06.                          Reports by Trustee to Holders.Within 60 days after each January 1 beginning with January 1, 2015, and for so long as Notes remain outstanding, the Trustee shall mail to the Holders a brief report dated as of such reporting date that complies with TIA § 313(a); *provided*that if no event described in TIA § 313(a) has occurred within the twelve months preceding such reporting date, no report need be transmitted.  The Trustee also shall comply with TIA § 313(b)(2).  The Trustee shall also transmit by mail all reports as required by TIA § 313(c).

 

A copy of each report at the time of its mailing to the Holders shall be mailed to the Issuer and filed with the SEC and each stock exchange on which the Notes are listed in accordance with TIA § 313(d).  The Issuer shall promptly notify the Trustee when the Notes are listed on any stock exchange.

 

Section 7.07.                          Compensation and Indemnity.The Issuer and Guarantors, jointly and severally, shall pay to the Trustee from time to time reasonable compensation for its acceptance of this Indenture and services hereunder as agreed to in writing.  The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust.  The Issuer and Guarantors, jointly and severally, shall reimburse the Trustee promptly upon request for all reasonable disbursements, advances and expenses incurred or made by it in addition to the compensation for its services.  Such expenses shall include the reasonable compensation, disbursements and expenses of the Trustee’s agents and counsel.

 

The Issuer and Guarantors, jointly and severally, shall indemnify the Trustee or any predecessor Trustee against any and all losses, claims, damages, penalties, fines, liabilities or expenses, including incidental and out-of-pocket expenses and reasonable attorneys’ fees (“*losses*”) incurred by it arising out of or in connection with the acceptance or administration of its duties under this Indenture, including the costs and expenses of enforcing this Indenture against the Issuer (including this Section 7.07) and defending itself against any claim (whether asserted by the Issuer or any Holder or any other person) or liability in connection with the exercise or performance of any of its powers or duties hereunder, except to the extent any such losses may be attributable to its gross negligence or bad faith.  The Trustee shall notify the Issuer promptly of any claim for which it may seek indemnity.  Failure by the Trustee to so notify the Issuer shall not relieve the Issuer of its obligations hereunder.  The Issuer shall defend the claim, and the Trustee shall cooperate in the defense.  The Trustee may have separate counsel and the Issuer shall pay the reasonable fees and expenses of such counsel.  The Issuer need not pay for any settlement made without its consent, which consent shall not be unreasonably withheld.  The Issuer need not reimburse any expense or indemnify against any loss liability or expense incurred by the Trustee through the Trustee’s own willful misconduct, gross negligence or bad faith.

 

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The obligations of the Issuer under this Section 7.07 shall survive the satisfaction and discharge of this Indenture.

 

To secure the Issuer’s payment obligations in this Section, the Trustee shall have a Lien prior to the Notes on all money or property held or collected by the Trustee.  Such Lien shall survive the satisfaction and discharge of this Indenture.

 

When the Trustee incurs expenses or renders services after an Event of Default specified in clauses (viii) or (ix) of Section 6.01 hereof occurs, the expenses and the compensation for the services (including the fees and expenses of its agents and counsel) are intended to constitute expenses of administration under any Bankruptcy Law.

 

The Trustee shall comply with the provisions of TIA § 313(b)(2) to the extent applicable.

 

Section 7.08.                          Replacement of Trustee.A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustee’s acceptance of appointment as provided in this Section.

 

The Trustee may resign in writing at any time upon 30 days prior notice to the Issuer and be discharged from the trust hereby created by so notifying the Issuer.  The Holders of a majority in principal amount of the then outstanding Notes may remove the Trustee by so notifying the Trustee and the Issuer in writing.  The Issuer may remove the Trustee if:

 

(a)                                 the Trustee fails to comply with Section 7.10 hereof;

 

(b)                                 the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;

 

(c)                                  a custodian or public officer takes charge of the Trustee or its property; or

 

(d)                                 the Trustee becomes incapable of acting.

 

If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Issuer shall promptly appoint a successor Trustee.  Within one year after the successor Trustee takes office, the Holders of a majority in principal amount of the then outstanding Notes may appoint a successor Trustee to replace the successor Trustee appointed by the Issuer.

 

If a successor Trustee does not take office within 30 days after the Trustee gives notice of resignation or receives notice of removal, the retiring Trustee, the Issuer, or the Holders of at least 10% in principal amount of the then outstanding Notes may petition any court of competent jurisdiction for the appointment of a successor Trustee.

 

If the Trustee, after written request by any Holder who has been a Holder for at least six months, fails to comply with Section 7.10, such Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.

 

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A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Issuer.  Thereupon, the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture.  The successor Trustee shall mail a notice of its succession to Holders.  Subject to the Lien provided for in Section 7.07 hereof, the retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee; *provided*, *however*, that all sums owing to the Trustee hereunder shall have been paid.  Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the Issuer’s obligations under Section 7.07  hereof shall continue for the benefit of the retiring Trustee.

 

Section 7.09.                          Successor Trustee by Merger, etc.If the Trustee consolidates, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation, the successor corporation without any further act shall be the successor Trustee.

 

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Section 7.10.                          Eligibility; Disqualification.There shall at all times be a Trustee hereunder that is a Person organized and doing business under the laws of the United States of America or of any state thereof that is authorized under such laws to exercise corporate trustee power, that is subject to supervision or examination by federal or state authorities and that has a combined capital and surplus of at least $50,000,000 as set forth in its most recent published annual report of condition.  This Indenture shall always have a Trustee who satisfies the requirements of TIA § 310(a)(1), (2) and (5).  The Trustee is subject to TIA § 310(b).

 

Section 7.11.                          Preferential Collection of Claims Against Issuer.The Trustee is subject to TIA § 311(a), excluding any creditor relationship listed in TIA § 311(b).  A Trustee who has resigned or been removed shall be subject to TIA § 311(a) to the extent indicated therein.

 

**ARTICLE 8**

 

**LEGAL DEFEASANCE AND COVENANT DEFEASANCE**

 

Section 8.01.                          Option to Effect Legal Defeasance or Covenant Defeasance.The Issuer may, at its option and at any time, elect to have either Section 8.02 or 8.03 hereof be applied to all outstanding Notes upon compliance with the conditions set forth below in this Article 8.

 

Section 8.02.                          Legal Defeasance and Discharge.Upon the Issuer’s exercise under Section 8.01 hereof of the option applicable to this Section 8.02, the Issuer and the Guarantors shall, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, be deemed to have been discharged from their respective obligations with respect to all outstanding Notes and Guarantees, on the date the conditions set forth below are satisfied (hereinafter, “*Legal Defeasance*”).  For this purpose, Legal Defeasance means that the Issuer shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes, which shall thereafter be deemed to be “outstanding” only for the purposes of Section 8.05 hereof and the other Sections of this Indenture referred to in (a) and (b) below, and to have satisfied all its other obligations under such Notes and this Indenture (and the Trustee, on demand of and at the expense of the Issuer, shall execute proper instruments acknowledging the same), except for the following provisions which shall survive until otherwise terminated or discharged hereunder:  (a) the rights of Holders of outstanding Notes to receive solely from the trust fund described in Section 8.04 hereof, and as more fully set forth in such Section, payments in respect of the principal of, premium, if any, and interest and Additional Interest, if any, on such Notes when such payments are due, (b) the Issuer’s obligations with respect to such Notes under Article 2 and Section 4.02 hereof, (c) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the Issuer’s and the Guarantors’ obligations in connection therewith and (d) this Article 8. If the Issuer exercises under Section 8.01 hereof the option applicable to this Section 8.02, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, payment of the Notes may not be accelerated because of an Event of Default.  Subject to compliance with this Article 8, the Issuer may exercise its option under this Section 8.02 notwithstanding the prior exercise of its option under Section 8.03 hereof.

 

Section 8.03.                          Covenant Defeasance.Upon the Issuer’s exercise under Section 8.01 hereof of the option applicable to this Section 8.03, the Issuer and the Guarantors shall, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, be released from their 

 

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respective obligations under the covenants contained in Sections 4.03, 4.05, 4.06, 4.08 through 4.14, and 4.17 through 4.19 hereof, and the operation of Sections 5.01(a)(iv) and 5.01(b)(iii)  hereof, with respect to the outstanding Notes on and after the date the conditions set forth in Section 8.04 are satisfied (hereinafter, “*Covenant Defeasance*”), and the Notes shall thereafter be deemed not “outstanding” for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed “outstanding” for all other purposes hereunder (it being understood that such Notes shall not be deemed outstanding for accounting purposes).  For this purpose, Covenant Defeasance means that, with respect to the outstanding Notes, the Issuer may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event of Default under Section 6.01 hereof, but, except as specified above, the remainder of this Indenture and such Notes shall be unaffected thereby.  If the Issuer exercises under Section 8.01 hereof the option applicable to this Section 8.03, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, payment of the Notes may not be accelerated because of an Event of Default specified in clauses (iii), (iv) (with respect to the covenants contained in Sections 4.03, 4.05, 4.06, 4.08 through 4.14, and 4.17 through 4.19 hereof), (v), (vi), (vii), (viii) and (ix) (but in the case of clauses (viii) and (ix) of Section 6.01 hereof, with respect to Significant Subsidiaries only).

 

Section 8.04.                          Conditions to Legal or Covenant Defeasance.The following shall be the conditions to the application of either Section 8.02 or 8.03 hereof to the outstanding Notes.  The Legal Defeasance or Covenant Defeasance may be exercised only if:

 

(a)                                 the Issuer irrevocably deposits with the Trustee, in trust, for the benefit of the Holders of the Notes, cash in U.S. Dollars, non-callable Government Securities, or a combination of cash in U.S. Dollar and non-callable Government Securities, in amounts as will be sufficient, in the opinion of an internationally recognized investment bank, appraisal firm or firm of independent public accountants as selected by the Parent, to pay the principal of, or interest and premium and Additional Interest, if any, on the outstanding Notes on the Stated Maturity or on the applicable redemption date, as the case may be, and the Issuer must specify whether the Notes are being defeased to maturity or to a particular redemption date;

 

(b)                                 in the case of Legal Defeasance, the Issuer delivers to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that (a) the Issuer has received from, or there has been published by, the Internal Revenue Service a ruling or (b) since the Issue Date, there has been a change in the applicable U.S. federal income Tax law, in either case to the effect that, and based thereon such Opinion of Counsel will confirm that, the Holders of the outstanding Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Legal Defeasance and will be subject to U.S. federal income Tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;

 

(c)                                  in the case of Covenant Defeasance, the Issuer delivers to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that the Holders of the outstanding 

 

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Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Covenant Defeasance and will be subject to U.S. federal income Tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;

 

(d)                                 no Default or Event of Default has occurred and is continuing on the date of such deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit);

 

(e)                                  such Legal Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under any material agreement or instrument (including, without limitation, the Credit Agreement, but excluding this Indenture) to which the Issuer or any Guarantor is a party or by which the Issuer or any Guarantor is bound;

 

(f)                                   the Issuer delivers to the Trustee an Officer’s Certificate stating that the deposit was not made by the Issuer with the intent of preferring the Holders of Notes over the Parent’s or any Restricted Subsidiary’s other creditors with the intent of defeating, hindering, delaying or defrauding the Issuer’s or any Restricted Subsidiary’s creditors or others; and

 

(g)                                  the Issuer delivers to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance have been complied with.

 

Section 8.05.                          Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions.Subject to Section 11.03 hereof, all money and Government Securities (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 8.05, the “*Trustee*”) pursuant to Section 8.04 hereof in respect of the outstanding Notes shall be held in trust and applied by the Trustee, in accordance with the provisions of such Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Parent or any Restricted Subsidiary acting as Paying Agent) as the Trustee may determine, to the Holders of all sums due and to become due thereon in respect of principal, premium, if any, and interest and Additional Interest, if any, but such money need not be segregated from other funds except to the extent required by law.

 

The Issuer shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash or Government Securities deposited pursuant to Section 8.04 hereof or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the outstanding Notes.

 

Anything in this Article 8 to the contrary notwithstanding, the Trustee shall deliver or pay to the Issuer from time to time upon the request of the Issuer any money or Government Securities held by it as provided in Section 8.04 hereof which, in the opinion of an internationally recognized firm of independent certified public accountants expressed in a written certification thereof delivered to the Trustee (which may be the certification delivered under Section 8.04(b) hereof), are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.

 

Section 8.06.                          [Reserved]

 

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Section 8.07.                          Reinstatement.

 

If the Trustee or Paying Agent is unable to apply any U.S. Dollars or U.S. Government Obligations in accordance with Section 8.02 or 8.03 hereof, as the case may be, by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Issuer’s obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.02 or 8.03 hereof until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 8.02 or 8.03 hereof, as the case may be; *provided*, *however*, that, if the Issuer makes any payment of principal of, premium, if any, or interest or Additional Interest on any Note following the reinstatement of its obligations, the Issuer shall be subrogated to the rights of the Holders to receive such payment from the money held by the Trustee or Paying Agent.

 

**ARTICLE 9**

 

**AMENDMENT, SUPPLEMENT AND WAIVER**

 

Section 9.01.                          Without Consent of Holders of Notes.Notwithstanding Section 9.02 of this Indenture, the Issuer, the Guarantors and the Trustee may amend or supplement this Indenture, the Notes or the Guarantees without the consent of any Holder to:

 

(a)                                 cure any ambiguity, mistake, defect or inconsistency;

 

(b)                                 provide for uncertificated Notes in addition to or in place of certificated Notes;

 

(c)                                  provide for the assumption by a successor corporation of the obligations of the Issuer or the Guarantors under the Notes, this Indenture and/or a Guarantee in the case of a merger or consolidation or sale of all or substantially all of the Issuer’s assets or the assets of such Guarantor’s assets;

 

(d)                                 make any change that would provide any additional rights or benefits to the Holders of the Notes or that does not adversely affect the legal rights hereunder of any such Holder;

 

(e)                                  make any change to comply with any requirement of the SEC in order to effect or maintain the qualification of this Indenture under the TIA;

 

(f)                                   add covenants for the benefit of the Holders or to surrender any right or power conferred upon the Issuer or any Guarantor;

 

(g)                                  add a Guarantor under this Indenture;

 

(h)                                 conform the text of this Indenture, the Guarantees or the Notes to any provision of the Description of Notes to the extent that such provision in the Description of Notes was intended to be a verbatim recitation of a provision of this Indenture, the Guarantee or the Notes;

 

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(i)                                     provide for the issuance of Additional Notes in accordance with the limitations as set forth in this Indenture;

 

(j)                                    provide for a successor trustee in accordance with the terms of the Indenture or to otherwise comply with any requirement of the Indenture; or

 

(k)                                 comply with the rules of any applicable securities depositary.

 

Upon the request of the Issuer accompanied by a Board Resolution of its Board of Directors authorizing the execution of any such amended or supplemental Indenture, and upon receipt by the Trustee of the documents described in Sections 7.02 and 9.06 hereof, the Trustee shall join with the Issuer in the execution of any amended or supplemental Indenture authorized or permitted by the terms of this Indenture and to make any further appropriate agreements and stipulations that may be therein contained, but the Trustee shall not be obligated to enter into such amended or supplemental Indenture that affects its own rights, duties or immunities under this Indenture or otherwise.

 

Section 9.02.                          With Consent of Holders of Notes.Except as provided below in this Section 9.02, the Issuer and the Trustee may amend or supplement this Indenture, the Notes or the Guarantees with the consent of the Holders of at least a majority in principal amount of the Notes, including Additional Notes, if any, then outstanding voting as a single class (including consents obtained in connection with a tender offer or exchange offer for, or purchase of, the Notes), and, subject to Sections 6.04 and 6.07 hereof, any existing Default or Event of Default (other than a Default or Event of Default in the payment of the principal of, premium, if any, or interest or Additional Interest on the Notes, except a payment default resulting from an acceleration that has been rescinded) or compliance with any provision of this Indenture, the Notes or the Guarantees may be waived with the consent of the Holders of a majority in principal amount of the then outstanding Notes, including Additional Notes, if any, voting as a single class (including consents obtained in connection with a tender offer or exchange offer for, or purchase of, the Notes). For the avoidance of doubt, the determination of whether any amendment, supplement or waiver has been consented to shall, where applicable, include any Additional Notes that have been issued under this Indenture at any time prior to, concurrently or contemporaneously with the time that such amendment, supplement or waiver becomes operative.

 

Upon the request of the Issuer accompanied by a Board Resolution of its Board of Directors authorizing the execution of any such amended or supplemental Indenture, and upon the filing with the Trustee of evidence satisfactory to the Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt by the Trustee of the documents described in Section 7.02 hereof, the Trustee shall join with the Issuer in the execution of such amended or supplemental Indenture unless such amended or supplemental Indenture directly affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such amended or supplemental Indenture.

 

The Issuer may, but shall not be obligated to, fix a record date for the purpose of determining the Persons entitled to consent to any indenture supplemental hereto.  If a record date is fixed, the Holders on such record date, or their duly designated proxies, and only such 

 

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Persons, shall be entitled to consent to such supplemental Indenture, whether or not such Holders remain Holders after such record date; provided, that unless such consent shall have become effective by virtue of the requisite percentage having been obtained prior to the date which is 90 days after such record date, any such consent previously given shall automatically and without further action by any Holder be cancelled and of no further effect.

 

It shall not be necessary for the consent of the Holders under this Section 9.02 to approve the particular form of any proposed amendment or waiver, but it shall be sufficient if such consent approves the substance thereof.

 

After an amendment, supplement or waiver under this Section becomes effective, the Issuer shall mail to the Holders to such Holder’s address appearing in the Security Register a notice briefly describing the amendment, supplement or waiver.  Any failure of the Issuer to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such amended or supplemental Indenture or waiver.  Subject to Sections 6.04 and 6.07 hereof, the Holders of a majority in aggregate principal amount of the Notes, including Additional Notes, if any, then outstanding voting as a single class may waive compliance in a particular instance by the Issuer with any provision of this Indenture or the Notes.

 

Without the consent of each Holder adversely affected, an amendment, supplement or waiver under this Section 9.02 may not (with respect to any Notes held by a non-consenting Holder):

 

(a)                                 reduce the principal amount of Notes whose Holders must consent to an amendment, supplement or waiver;

 

(b)                                 reduce the principal of or change the fixed maturity of any Note or alter the provisions with respect to the redemption of the Notes (other than the provisions of Section 3.09, Section 4.12, Section 4.18 or the minimum notice provisions required with respect to the redemption of the Notes);

 

(c)                                  reduce the rate of or change the time for payment of interest on any Note;

 

(d)                                 waive a Default or Event of Default in the payment of principal of, or interest or premium, or Additional Interest, if any, on the Notes (except a rescission of acceleration of the Notes by the Holders of at least a majority in aggregate principal amount of the Notes and a waiver of the payment default that resulted from such acceleration);

 

(e)                                  make any Note payable in currency other than that stated in the Notes;

 

(f)                                   make any change in the provisions of this Indenture relating to waivers of past Defaults or the rights of Holders of Notes to receive payments of principal of, or interest or premium or Additional Interest, if any, on the Notes;

 

(g)                                  waive a redemption payment with respect to any Note (other than a payment required by one of the covenants under this Indenture);

 

(h)                                 make any change in the preceding amendment and waiver provisions; or

 

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(i)                                     release the Parent from its Guarantee or release all or substantially all of the Guarantors from their Guarantees, in each case, except in accordance with the terms of this Indenture.

 

Section 9.03.                          Compliance with Trust Indenture Act.Every amendment or supplement to this Indenture or the Notes shall be set forth in an amended or supplemental Indenture that complies with the TIA as then in effect.

 

Section 9.04.                          Revocation and Effect of Consents.Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder is a continuing consent by the Holder of a Note and every subsequent Holder of a Note or portion thereof that evidences the same debt as the consenting Holder’s Note, even if notation of the consent is not made on any Note.  However, any such Holder or subsequent Holder may revoke the consent as to its Note or portion thereof if the Trustee receives written notice of revocation before the Trustee receives an Officer’s Certificate certifying that the Holders of the requisite principal amount of Notes have consented (and theretofore not revoked such consent) to the amendment, supplement or waiver.

 

Section 9.05.                          Notation on or Exchange of Notes.The Trustee may place an appropriate notation about an amendment, supplement or waiver on any Note thereafter authenticated.  The Issuer in exchange for all Notes may issue and the Trustee shall, upon receipt of an Authentication Order, authenticate new Notes that reflect the amendment, supplement or waiver.

 

Failure to make the appropriate notation or issue a new Note shall not affect the validity and effect of such amendment, supplement or waiver.

 

Section 9.06.                          Trustee to Sign Amendments, etc.The Trustee shall sign any amended or supplemental Indenture authorized pursuant to this Article 9 if the amendment or supplement does not adversely affect the rights, duties, liabilities or immunities of the Trustee.  The Issuer may not sign an amendment or supplemental Indenture until its Board of Directors approves it.  In executing any amended or supplemental Indenture, the Trustee shall be entitled to receive and (subject to Section 7.01 hereof) shall be fully protected in relying upon an Officer’s Certificate and an Opinion of Counsel stating that the execution of such amended or supplemental Indenture is authorized or permitted by this Indenture and that such amended or supplemental Indenture is the legal, valid and binding obligation of the Issuer enforceable against it in accordance with its terms, subject to customary exceptions and that such amended or supplemental Indenture complies with the provisions hereof (including Section 9.03).

 

Section 9.07.                          Payments for Consent.Parent will not, and will not permit any of the Restricted Subsidiaries to, directly or indirectly, pay or cause to be paid any consideration, to or for the benefit of any Holder of Notes for or as an inducement to any consent, waiver or amendment of any of the terms or provisions of this Indenture or the Notes unless such consideration is offered to be paid and is paid to all Holders of the Notes that consent, waive or agree to amend in the time frame set forth in the solicitation documents relating to such consent, waiver or agreement.

 

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**ARTICLE 10**

 

**GUARANTEES**

 

Section 10.01.                   Guarantee.Subject to this Article 10, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Issuer hereunder or thereunder, that:

 

(a)                                 the principal of premium, if any, and interest on the Notes shall be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of and interest on the Notes, if any, if lawful, and all other obligations of the Issuer to the Holders or the Trustee hereunder or thereunder shall be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and

 

(b)                                 in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration pursuant to Section 6.02 hereof or otherwise.  Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately.  Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.

 

Each Guarantor hereby agrees that its obligations with regard to this Guarantee shall be joint and several, unconditional, irrespective of the validity or enforceability of the Notes or the obligations of the Issuer under this Indenture, the absence of any action to enforce the same, the recovery of any judgment against the Issuer or any other obligor with respect to this Indenture, the Notes or the Obligations of the Issuer under this Indenture or the Notes, any action to enforce the same or any other circumstances (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Guarantor.  Each Guarantor further, to the extent permitted by law, waives and relinquishes all claims, rights and remedies accorded by applicable law to guarantors and agrees not to assert or take advantage of any such claims, rights or remedies, including but not limited to:  (a) any right to require any of the Trustee, the Holders or the Issuer (each a “*Benefited Party*”), as a condition of payment or performance by such Guarantor, to (1) proceed against the Issuer, any other guarantor (including any other Guarantor) of the Obligations under the Guarantees or any other Person, (2) proceed against or exhaust any security held from the Issuer, any such other guarantor or any other Person, (3) proceed against or have resort to any balance of any deposit account or credit on the books of any Benefited Party in favor of the Issuer or any other Person, or (4) pursue any other remedy in the power of any Benefited Party whatsoever; (b) any defense arising by reason of the incapacity, lack of authority or any disability or other defense of the Issuer including any defense based on or arising out of the lack of validity or the unenforceability of the Obligations under the Guarantees or any agreement or instrument relating thereto or by reason of the cessation of the liability of the Issuer from any cause other than payment in full of the Obligations under the Guarantees; (c) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the 

 

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principal; (d) any defense based upon any Benefited Party’s errors or omissions in the administration of the Obligations under the Guarantees, except behavior which amounts to bad faith; (e) (1) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms of the Guarantees and any legal or equitable discharge of such Guarantor’s obligations hereunder, (2) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance of the Guarantees, notices of Default under the Notes or any agreement or instrument related thereto, notices of any renewal, extension or modification of the Obligations under the Guarantees or any agreement related thereto, and notices of any extension of credit to the Issuer and any right to consent to any thereof; (g) to the extent permitted under applicable law, the benefits of any “One Action” rule; and (h) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties, or which may conflict with the terms of the Guarantees.  Each Guarantor hereby covenants that its Guarantee shall not be discharged except by complete performance of the obligations contained in its Guarantee and this Indenture.

 

If any Holder or the Trustee is required by any court or otherwise to return to the Issuer, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuer or the Guarantors, any amount paid by either to the Trustee or such Holder, this Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect.

 

Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby.  Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 6.02 hereof for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby and (y) in the event of any declaration of acceleration of such obligations as provided in Section 6.02 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Guarantee.  The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantee.

 

Section 10.02.                   Limitation on Guarantor Liability.Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to any Guarantee.  To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such Guarantor under this Article 10 shall be limited to the maximum amount as shall, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Guarantor that are relevant under such laws, including, if applicable, its guarantee of all obligations under the Credit Agreement, and after giving effect to any collections from, rights to 

 

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receive contribution from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under this Article 10, result in the obligations of such Guarantor under its Guarantee not constituting a fraudulent transfer or conveyance.

 

Section 10.03.                   Execution and Delivery of Guarantee.To evidence its Guarantee set forth in Section 10.01 hereof, each Guarantor hereby agrees that a notation of such Guarantee in substantially the form included in Exhibit D shall be endorsed by an Officer of such Guarantor on each Note authenticated and delivered by the Trustee.

 

Each Guarantor hereby agrees that its Guarantee set forth in Section 10.01 hereof shall remain in full force and effect notwithstanding any failure to endorse on each Note a notation of such Guarantee.

 

If an Officer whose signature is on any supplemental indenture or on the Guarantee no longer holds that office at the time the Trustee authenticates the Note on which a Guarantee is endorsed, the Guarantee shall be valid nevertheless.

 

The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Guarantee set forth in this Indenture on behalf of the Guarantors.

 

Section 10.04.                   Guarantors May Consolidate, etc., on Certain Terms.

 

(a)                                 Except as otherwise provided in Section 10.05 hereof, no Guarantor may sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or merge with or into (whether or not such Guarantor is the surviving Person) another Person, other than the Issuer or another Guarantor, unless:

 

(i)                                     immediately after giving effect to such transaction, no Default or Event of Default exists; and

 

(ii)                                  either:

 

(A)                               Subject to Section 10.05 hereof, the Person acquiring the property in any such sale or disposition or the Person formed by or surviving any such consolidation or merger (if other than a Guarantor) unconditionally assumes all the obligations of that Guarantor under this Indenture, its Guarantee and the Registration Rights Agreement on the terms set forth herein or therein, pursuant to a supplemental Indenture in form and substance reasonably satisfactory to the Trustee; or

 

(B)                               Except in the case of the Parent, the Net Proceeds of such sale or other disposition are applied in accordance with the applicable provisions of this Indenture, including without limitation, Section 4.12 hereof.

 

(b)                                 In case of any such consolidation, merger, sale or conveyance and upon the assumption by the successor Person, by supplemental Indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the Guarantee endorsed upon the Notes and the due and punctual performance of all of the covenants and conditions of this Indenture to be

 

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performed by the Guarantor, such successor Person shall succeed to and be substituted for the Guarantor with the same effect as if it had been named herein as a Guarantor.  Such successor Person thereupon may cause to be signed any or all of the Guarantees to be endorsed upon all of the Notes issuable hereunder which theretofore shall not have been signed by the Issuer and delivered to the Trustee.  All the Guarantees so issued shall in all respects have the same legal rank and benefit under this Indenture as the Guarantees theretofore and thereafter issued in accordance with the terms of this Indenture as though all of such Guarantees had been issued at the date of the execution hereof.

 

(c)                                  Except as set forth in Articles 4 and 5 hereof, and notwithstanding clauses (a)(ii)(A) and (B) above, nothing contained in this Indenture or in any of the Notes shall prevent any consolidation or merger of a Guarantor with or into the Issuer or another Guarantor, or shall prevent any sale or conveyance of the property of a Guarantor as an entirety or substantially as an entirety to the Issuer or another Guarantor.

 

Section 10.05.                   Release of Guarantees.The Guarantee of a Guarantor shall be unconditionally released and discharged, and no further action by such Guarantor, the Issuer or the Trustee is required for the release of such Guarantor’s Guarantee, upon:

 

(1)                                 (a) except in the case of the Parent, in connection with (i) any sale or other disposition of all of the assets of that Guarantor (including by way of merger or consolidation) to a Person that is not (either before or after giving effect to such transaction) a Restricted Subsidiary of the Parent’s, if the sale or other disposition comply with the provisions of Section 4.12 or (ii) any sale of all of the Capital Stock of a Guarantor to a Person that is not (either before or after giving effect to such transaction) the Parent or a Restricted Subsidiary of the Parent, if the sale complies with the provisions of Section 4.12, in each case as provided in Section 4.12;

 

(b)                                 if the Issuer designates any Restricted Subsidiary that is a Guarantor as an Unrestricted Subsidiary in accordance with Section 4.17;

 

(c)                                  upon Legal Defeasance or Covenant Defeasance pursuant to Article 8 and upon a discharge of this Indenture pursuant to Section 11.01; or

 

(d)                                 except in the case of the Parent, if such Guarantor shall not Guarantee any Indebtedness under any Credit Facility (other than if such Guarantor no longer Guarantees any such Indebtedness as a result of payment under any Guarantee of any such Indebtedness by any Guarantor); *provided*that a Guarantor shall not be permitted to be released from its Guarantee pursuant to this clause (d) if it is an obligor with respect to such Indebtedness that would not, pursuant to Section 4.09, be permitted to be incurred by a Restricted Subsidiary that is not a Guarantor, unless such Guarantor is also designated as an Unrestricted Subsidiary at the time of such release.

 

(2)                                 such Guarantor delivering to the Trustee an Officer’s Certificate and Opinion of Counsel, each stating that all conditions precedent provided for in this Indenture relating to such transaction have been complied with.

 

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**ARTICLE 11**

 

**SATISFACTION AND DISCHARGE**

 

Section 11.01.                   Satisfaction and Discharge.This Indenture will be discharged and will cease to be of further effect as to all Notes issued hereunder, when:

 

(a)                                 either:

 

(i)                                     all Notes that have been authenticated (except lost, stolen or destroyed Notes that have been replaced or paid and Notes for whose payment money has theretofore been deposited in trust) have been delivered to the Trustee for cancellation; or

 

(ii)                                  all Notes that have not been delivered to the Trustee for cancellation (A) have become due and payable by reason of the making of a notice of redemption or otherwise or (B) will become due and payable within one year and the Issuer has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust solely for the benefit of the Holders, cash in U.S. Dollars, non-callable Government Securities, or (C) a combination of cash and non-callable Government Securities, in such amounts as will be sufficient without consideration of any reinvestment of interest, to pay and discharge the entire indebtedness on the Notes not delivered to the Trustee for cancellation for principal, premium, if any, and accrued interest and Additional Interest, if any, to the date of maturity or redemption;

 

(b)                                 no Default or Event of Default shall have occurred and be continuing on the date of such deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit) and such deposit will not result in a breach or violation of, or constitute a default under, any other instrument to which the Issuer or any Guarantor is a party or by which the Issuer or any Guarantor is bound;

 

(c)                                  the Issuer or any Guarantor has paid or caused to be paid all sums payable by the Issuer under this Indenture; and

 

(d)                                 the Issuer has delivered irrevocable instructions to the Trustee under this Indenture to apply the deposited money and/or non-callable Government Securities toward the payment of the Notes at maturity or the redemption date, as the case may be.

 

The Issuer shall deliver an Officer’s Certificate and an Opinion of Counsel to the Trustee stating that all conditions precedent to satisfaction and discharge have been satisfied.

 

Section 11.02.                   Deposited Money and Government Securities To Be Held in Trust; Other Miscellaneous Provisions.Subject to Section 11.03 hereof, all money and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 11.02, the “*Trustee*”) pursuant to Section 11.01 hereof in respect of the outstanding Notes shall be held in trust and applied by the Trustee, in accordance with the provisions of such Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Parent or any Restricted Subsidiary acting as Paying Agent) as the Trustee may determine, to the Holders of such Notes of all sums due and to 

 

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become due thereon in respect of principal, premium, if any, and interest and Additional Interest, if any, but such money need not be segregated from other funds except to the extent required by law.

 

Section 11.03.                   Repayment to Issuer.Any money deposited with the Trustee or any Paying Agent, or then held by the Issuer, in trust for the payment of the principal of, premium, if any, or interest or Additional Interest on any Note and remaining unclaimed for two years after such principal, and premium, if any, or interest has become due and payable shall be paid to the Issuer on its request or (if then held by the Issuer) shall be discharged from such trust; and the Holder shall thereafter look only to the Issuer for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Issuer as trustee thereof, shall thereupon cease; *provided*, *however*, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Issuer cause to be published once, in The New York Times and The Wall Street Journal (national edition), notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such notification or publication, any unclaimed balance of such money then remaining will be repaid to the Issuer.

 

**ARTICLE 12**

 

**MISCELLANEOUS**

 

Section 12.01.                   Trust Indenture Act Controls.If any provision of this Indenture limits, qualifies or conflicts with the duties imposed by TIA §318(c), the imposed duties shall control.

 

Section 12.02.                   Notices.Any notice or communication by the Issuer or the Trustee to the others is duly given if in writing and delivered in Person or mailed by first class mail (registered or certified, return receipt requested), telecopier or overnight air courier guaranteeing next-day delivery, to the other’s address:

 

If to the Issuer:

 

Grifols Worldwide Operations Limited Embassy House

Herbert Park Lane

Ballsbridge

Dublin 4

Ireland Attention:  The Directors

 

With a copy to:

 

Proskauer Rose LLP Eleven Times Square New York, New York 10036

 

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Attention:  Frank J. Lopez Telecopier No.:  (212) 969-2900

 

If to the Trustee:

 

The Bank of New York Mellon Trust Company, N.A. 10161 Centurion Parkway

Jacksonville, Florida

32256

Attention: Corporate Trust Administration

Telecopier No.: (904) 645 1921

 

The Issuer or the Trustee, by notice to the others, may designate additional or different addresses, including if it is a different entity notices for each Agent, for subsequent notices or communications.

 

All notices and communications (other than those sent to Holders and the Trustee) shall be deemed to have been duly given:  at the time delivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; when receipt acknowledged, if telescoped; and the next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next-day delivery.  All notices and communications to the Trustee shall be deemed duly given and effective only upon receipt.

 

Any notice or communication to a Holder shall be mailed by first class mail, certified or registered, return receipt requested, or by overnight air courier guaranteeing next-day delivery to its address shown on the Security Register.  Any notice or communication shall also be so mailed to any Person described in TIA § 313(c), to the extent required by the TIA.  Failure to mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders.

 

If a notice or communication is mailed in the manner provided above within the time prescribed, it is duly given, whether or not the addressee receives it.

 

If the Issuer mails a notice or communication to Holders, it shall mail a copy to the Trustee and, if it is a different Person, to each Agent at the same time.

 

In addition to the foregoing, the Trustee agrees to accept and act upon notice, instructions or directions pursuant to this Indenture sent by unsecured e-mail, facsimile transmission or other similar unsecured electronic methods.  If the party elects to give the Trustee e-mail or facsimile instructions (or instructions by a similar electronic method) and the Trustee in its discretion elects to act upon such instructions, the Trustee’s understanding of such instructions shall be deemed controlling.  The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such instructions notwithstanding such instructions conflict or are inconsistent with a subsequent written instruction.  The party providing electronic instructions agrees to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Trustee, including 

 

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without limitation the risk of the Trustee acting on unauthorized instructions, and the risk or interception and misuse by third parties.

 

Section 12.03.                   Communication by Holders of Notes with Other Holders of Notes.Holders may communicate pursuant to TIA § 312(b) with other Holders with respect to their rights under this Indenture or the Notes.  The Issuer, the Trustee, the Registrar and anyone else shall have the protection of TIA § 312(c).

 

Section 12.04.                   Certificate and Opinion as to Conditions Precedent.Upon any request or application by the Issuer to the Trustee to take any action under any provision of this Indenture, the Issuer shall furnish to the Trustee:

 

(a)                                 an Officer’s Certificate in form and substance reasonably satisfactory to the Trustee (which shall include the statements set forth in Section 12.05 hereof) stating that, in the opinion of the signers, all conditions precedent and covenants, if any, provided for in this Indenture relating to the proposed action have been complied with; and

 

(b)                                 an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee (which shall include the statements set forth in Section 12.05 hereof) stating that, in the opinion of such counsel, all such conditions precedent and covenants have been complied with.

 

Section 12.05.                   Statements Required in Certificate or Opinion.Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than a certificate provided pursuant to TIA § 314(a)(4)) shall comply with the provisions of TIA § 314(e) and shall include:

 

(a)                                 a statement that the Person making such certificate or opinion has read such covenant or condition;

 

(b)                                 a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;

 

(c)                                  a statement that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable such Person to express an informed opinion as to whether or not such covenant or condition has been complied with; and

 

(d)                                 a statement as to whether or not, in the opinion of such Person, such condition or covenant has been complied with.

 

Section 12.06.                   Rules by Trustee and Agents and No Personal Liability of Directors, Officers, Employees and Stockholders.(a)  Rules by Trustee

 

The Trustee may make reasonable rules for action by or at a meeting of Holders.  The Registrar or Paying Agent may make reasonable rules and set reasonable requirements for its functions.

 

(b) No Personal Liability of Directors, Officers, Employees and Stockholders

 

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No past, present or future director, officer, employee, partner, manager, agent, member, incorporator (or Person forming any limited liability company) or stockholder of the Issuer or of any Guarantor, as such, shall have any liability for any obligations of the Issuer of any Guarantor under the Notes, this Indenture, any Guarantee or for any claim based on, in respect of, or by reason of, such obligations or their creation.  Each Holder by accepting a Note and Guarantee waives and releases all such liability.  The waiver and release are part of the consideration for issuance of the Notes and Guarantee.  Such waiver may not be effective to waive liabilities under the federal securities laws and it is the view of the SEC that such a waiver is against public policy.

 

Section 12.07.                   Governing Law.THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS INDENTURE AND THE NOTES WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.

 

Section 12.08.                   No Adverse Interpretation of Other Agreements.This Indenture may not be used to interpret any other indenture, loan or debt agreement of the Parent or its Subsidiaries or of any other Person.  Any such indenture, loan or debt agreement may not be used to interpret this Indenture.

 

Section 12.09.                   Successors.All covenants and agreements of the Parent and the Restricted Subsidiaries in this Indenture and the Notes shall bind its successors.  All covenants and agreements of the Trustee in this Indenture shall bind its successors.

 

Section 12.10.                   Severability.In case any provision in this Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

 

Section 12.11.                   Counterpart Originals.The parties may sign any number of copies of this Indenture.  Each signed copy shall be an original, but all of them together represent the same agreement.

 

Section 12.12.                   Table of Contents, Headings, etc.The Table of Contents, Cross-Reference Table and Headings in this Indenture have been inserted for convenience of reference only, are not to be considered a part of this Indenture and shall in no way modify or restrict any of the terms or provisions hereof.

 

Section 12.13.                   Waiver of Jury Trial.EACH OF THE ISSUER, THE GUARANTORS AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES, THE GUARANTEES OR THE TRANSACTION CONTEMPLATED HEREBY.

 

Section 12.14.                   Agent for Service; Submission to Jurisdiction; Waiver of Immunities.

 

Each of the parties hereto irrevocably agrees that any suit, action or proceeding arising out of, related to, or in connection with this Indenture, the Notes, the Guarantees and any 

 

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supplemental indenture or the transactions contemplated hereby, and any action arising under U.S. federal or state securities laws, may be instituted in any U.S. federal or state court located in the State and City of New York, Borough of Manhattan; irrevocably waives, to the fullest extent it may effectively do so, any objection which it may now or hereafter have to the laying of venue of any such proceeding; and irrevocably submits to the jurisdiction of such courts in any such suit, action or proceeding.  The Issuer and each of the Guarantors has appointed Grifols, Inc., with the address 2410 Lillyvale Ave., Los Angeles, CA 90032-3514 as its authorized agent upon whom process may be served in any such suit, action or proceeding which may be instituted in any federal or state court located in the State of New York, Borough of Manhattan arising out of or based upon this Indenture, the Notes or the transactions contemplated hereby or thereby, and any action brought under U.S. federal or state securities laws (the “*Authorized Agent*”).  The Issuer and each of the Guarantors expressly consents to the jurisdiction of any such court in respect of any such action and waives any other requirements of or objections to personal jurisdiction with respect thereto and waives any right to trial by jury.  Such appointment shall be irrevocable unless and until replaced by an agent reasonably acceptable to the Trustee.  The Issuer and each of the Guarantors represents and warrants that the Authorized Agent has agreed to act as said agent for service of process, and the Issuer agrees to take any and all action, including the filing of any and all documents and instruments, that may be necessary to continue such appointment in full force and effect as aforesaid.  Service of process upon the Authorized Agent and written notice of such service to the Issuer shall be deemed, in every respect, effective service of process upon the Issuer and any Guarantor.

 

Section 12.15.                   Judgment Currency.

 

United States Dollars (“U.S. Dollars”) is the sole currency of account and payment for all sums payable by the Issuer or any Guarantor under the Notes, any Guarantee thereof and this Indenture. Any payment on account of an amount that is payable in United U.S. Dollars, in respect of the Notes, which is made to or for the account of any Holder or the Trustee in lawful currency of any other jurisdiction (the “*Judgment Currency*”), whether as a result of any judgment or order or the enforcement thereof or the liquidation of the Issuer or any Guarantor, shall constitute a discharge of the Issuer or the Guarantor’s obligation under this Indenture and the Notes or Guarantee and/or any supplemental indenture, as the case may be, only to the extent of the amount of Euro with such Holder or the Trustee, as the case may be, could purchase in the London foreign exchange markets with the amount of the Judgment Currency in accordance with normal banking procedures at the rate of exchange prevailing on the first Business Day following receipt of the payment in the Judgment Currency. If the amount of U.S. Dollars that could be so purchased is less than the amount of U.S. Dollars originally due to such Holder or the Trustee, as the case may be, the Issuer and the Guarantors shall indemnify and hold harmless the Holder or the Trustee, as the case may be, from and against all loss or damage arising out of, or as a result of, such deficiency. This indemnity shall constitute an obligation separate and independent from the other obligations contained in this Indenture or the Notes, shall give rise to a separate and independent cause of action, shall apply irrespective of any indulgence granted by any Holder or the Trustee from time to time and shall continue in full force and effect notwithstanding any judgment or order for a liquidated sum in respect of an amount due hereunder or under any judgment or order.

 

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[Signatures on following page]

 

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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed and attested, as of the date and year first above written.

 
|   | **ISSUER**                                                    |
|--------|---------------------------------------------------------------|
|   | ** **                                                    |
|   | GRIFOLS   WORLDWIDE OPERATIONS LIMITED                        |
|   |                                                          |
|   | By:                                                           | /s/ Alfredo Arroyo Guerra |
|   |                                                          | Name: | Alfredo   Arroyo Guerra |
|   |                                                          | Title: | Director |
|   |                                                          |
|   |                                                          |
|   | **TRUSTEE**                                                   |
|   | ** **                                                    |
|   | THE   BANK OF NEW YORK MELLON TRUST COMPANY, N.A., AS TRUSTEE |
|   |                                                          |
|   | By:                                                           | /s/ Melonee Young |
|   |                                                          | Name: | Melonee   Young |
|   |                                                          | Title: | Vice   President |
|   |                                                          |
|   |                                                          |
|   | **GUARANTORS**                                                |
|   | ** **                                                    |
|   | GRIFOLS,   S.A.                                               |
|   |                                                          |
|   | By:                                                           | /s/ Victor Grifols Roura |
|   |                                                          | Name: | Victor   Grifols Roura |
|   |                                                          | Title: | President   and Chief Executive Officer |
|   |                                                          |
|   |                                                          |
|   | BIOMAT   USA, INC.                                       |
|   |                                                          |
|   | By:                                                           | /s/ David I. Bell |
|   |                                                          | Name: | David   I. Bell |
|   |                                                          | Title: | Chairman |
|   |                                                          |
|   |                                                          |
|   | GRIFOLS   BIOLOGICALS INC.                                    |
|   |                                                          |
|   | By:                                                           | /s/ David I. Bell |
|   |                                                          | Name: | David   I. Bell |
|   |                                                          | Title: | Corporate   Vice President |

 

[*Signature Page to Indenture*]

 

----

 
|   | GRIFOLS   INC.                                |
|--------|-----------------------------------------------|
|   |                                          |
|   | By:                                           | /s/ David I. Bell |
|   |                                          | Name: | David   I. Bell |
|   |                                          | Title: | Corporate   Vice President |
|   |                                          |
|   |                                          |
|   | GRIFOLS   DIAGNOSTIC SOLUTIONS INC.           |
|   |                                          |
|   | By:                                           | /s/ David I. Bell |
|   |                                          | Name: | David   I. Bell |
|   |                                          | Title: | Director |
|   |                                          |
|   |                                          |
|   | GRIFOLS   THERAPEUTICS, INC              |
|   |                                          |
|   | By:                                           | /s/ David I. Bell |
|   |                                          | Name: | David   I. Bell |
|   |                                          | Title: | Corporate   Vice President |
|   |                                          |
|   |                                          |
|   | INSTITUTO   GRIFOLS, S.A.                     |
|   |                                          |
|   | By:                                           | /s/ Victor Grifols Roura |
|   |                                          | Name: | Victor   Grifols Roura |
|   |                                          | Title: | President   and Chief Executive Officer |
|   |                                          |
|   |                                          |
|   | GRIFOLS   WORLDWIDE OPERATIONS USA, INC. |
|   |                                          |
|   | By:                                           | /s/ David I. Bell |
|   |                                          | Name: | David   I. Bell |
|   |                                          | Title: | Director |

 

[*Signature Page to Indenture*]

 

----

 

**EXHIBIT A**

 

(face of Note)

 

[RULE 144A][REGULATION S] [GLOBAL] NOTE

 

5.25% Senior Notes due 2022

 
|                    |   | CUSIP [  ]              |
|-------------------------|--------|-----------------------------------|
|                    |   | ISIN [  ]               |
| No.[   ] |   | $[     ] |

 

**Grifols Worldwide Operations Limited**

 

promises to pay to CEDE & CO., INC. or registered assigns, the principal amount of $[  ] United States Dollars on April 1, 2022.

 

Interest Payment Dates:  April 1 and October 1, commencing October 1, 2014.  Record Dates:  March 15 and September 15.

 

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IN WITNESS WHEREOF, the Issuer has caused this Note to be signed manually or by facsimile by its duly authorized officers.

 
|   | ISSUER:                                |
|--------|----------------------------------------|
|   |                                   |
|   | Grifols   Worldwide Operations Limited |
|   |                                   |
|   | By:                                    |   |
|   |                                   | Name: |
|   |                                   | Title: |

 

 

This is one of the Global Notes referred to in the within-mentioned Indenture:

 
| The   Bank of New York Mellon Trust Company, N.A., |                   |
|----------------------------------------------------|------------------------|
|  as Trustee                                   |                   |
|                                               |                   |
| By:                                                |                   |   |   |
|                                               | Authorized   Signatory |   |   |
|                                               |                   |   |   |
|                                               | Dated                  |   |   |   |
|                                                    |                        |  |  |  |

 

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(Back of Note) 5.25% Senior Notes due 2022

 

[*Insert the following Global Note Legend, if applicable pursuant to the terms of the Indenture*]

 

[THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE ISSUER.

 

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

 

[*Insert the following Private Placement Legend, if applicable pursuant to the terms of the Indenture*]

 

[THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH BELOW.  BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT OR (C) IT IS AN ACCREDITED INVESTOR (WITHIN THE MEANING OF RULE 501(a)(1), (2), (3), OR (7) UNDER THE SECURITIES ACT, AS AMENDED, (AN

 

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“ACCREDITED INVESTOR”), (2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS SECURITY, PRIOR TO THE EXPIRATION OF THE APPLICABLE HOLDING PERIOD WITH RESPECT TO RESTRICTED SECURITIES SET FORTH IN RULE 144 UNDER THE SECURITIES ACT, EXCEPT (A) TO THE ISSUER OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES (OR HAS FURNISHED ON ITS BEHALF BY A U.S. BROKER DEALER) TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS SECURITY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE FOR THIS SECURITY), (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT (IF AVAILABLE), (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (F) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE ISSUER SO REQUESTS), OR (G) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.  IN CONNECTION WITH ANY TRANSFER OF THIS SECURITY, PRIOR TO THE EXPIRATION OF THE APPLICABLE HOLDING PERIOD WITH RESPECT TO RESTRICTED SECURITIES SET FORTH IN RULE 144 UNDER THE SECURITIES ACT, IF THE PROPOSED TRANSFEREE IS AN ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND THE ISSUER SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.  AS USED HEREIN, THE TERMS “OFFSHORE TRANSACTION,” “UNITED STATES” AND “U.S. PERSON” HAVE THE MEANING GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.]

 

Capitalized terms used herein shall have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.

 

1.                                      ***Interest***.  The Issuer promises to pay interest on the principal amount of this Note at 5.25% per annum until maturity and shall pay Additional Interest, if any, as provided in Section 2 of the Registration Rights Agreement.  The Issuer shall pay interest semi-annually on April 1 and October 1 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 shall 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*, *however*, 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 October 1,

 

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2014.  The Issuer shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal and premium, if any, from time to time on demand at a rate that is 1% per annum in excess of the rate then in effect; it shall 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 shall be computed on the basis of a 360-day year of twelve 30-day months.

 

2.                                      ***Method of Payment***.  The Issuer shall pay interest on the Notes (except defaulted interest) to the Persons who are Holders at the close of business on the March 15 or September 15 next preceding the interest payment date, even if such Notes are cancelled after such record date and on or before such interest payment date, except as provided in Section 2.12 of the Indenture with respect to defaulted interest.  The Notes shall be payable as to principal, premium, if any, and interest and Additional Interest, if any, at the office or agency of the Issuer maintained for such purpose, or, at the option of the Issuer, payment of interest and Additional Interest, if any, may be made by check mailed to the Holders at their addresses set forth in the Security Register; *provided*, *however*, that payment by wire transfer of immediately available funds shall be required with respect to principal of and interest and Additional Interest, if any, and premium, if any, on, all Global Notes and all other Notes the Holders of which shall have provided wire transfer instructions to the Issuer or the Paying Agent.  Such payment shall 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, The Bank of New York Mellon Trust Company, N.A., the Trustee under the Indenture, shall act as Paying Agent and Registrar.  The Issuer may change any Paying Agent or Registrar without notice to any Holder.  The Parent or any of Subsidiary may act in any such capacity.

 

4.                                      ***Indenture*****. **The Issuer issued the Notes under an Indenture dated as of March 12, 2014 (“*Indenture*”) among the Issuer and the Trustee.  The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended (15 U.S. Code §§ 77aaa-77bbbb).  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.  The Indenture does not limit the aggregate principal amount of Notes that may be issued thereunder.

 

5.                                      ***Optional Redemption***.

 

(a)                                 Except as set forth in clauses (b) and (c) of this Paragraph 5, the Notes will not be redeemable at the option of the Issuer prior to April 1, 2017.  On or after April 1, 2017, the Issuer may redeem all or any portion of the Notes, at once or over time, after giving the required notice under the Indenture.  The Notes may be redeemed at the redemption prices (expressed as percentages of principal amount) set forth below, plus accrued and unpaid interest and Additional Interest, if any, to the redemption date (subject to the right of Holders on the

 

A-5

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relevant record date to receive interest due on the relevant interest payment date), if redeemed during the twelve-month period beginning on April 1 of the years indicated below:

 
| **Year**            | ** ** | **Percent** | ** ** |
|---------------------|------------|-------------|------------|
| 2017                |       | 103.938     | %          |
| 2018                |       | 102.625     | %          |
| 2019                |       | 101.313     | %          |
| 2020 and thereafter |       | 100.000     | %          |

 

(b)                                 At any time and from time to time prior to April 1, 2017, the Issuer may redeem up to 35% of the aggregate principal amount of the Notes issued under the Indenture (including Additional Notes) at a redemption price equal to 105.25% of the principal amount thereof, *plus*accrued and unpaid interest and Additional Interest, if any, to the redemption date (subject to the right of Holders on the relevant record date to receive interest due on the relevant interest payment date) with the net cash proceeds of any Qualified Equity Offering; *provided*, *however*, that:

 

(1)                                 after giving effect to any such redemption, at least 65% of the aggregate principal amount of the Notes issued on the Issue Date (excluding Notes held by the Parent and its Subsidiaries) remains outstanding immediately after the occurrence of such redemption; and

 

(2)                                 any such redemption shall be made within 90 days of such Qualified Equity Offering upon not less than 30 nor more than 60 days’ prior notice.

 

(c)                                  At any time and from time to time prior to April 1, 2017, the Issuer may redeem all or a part of the Notes upon not less than 30 nor more than 60 days’ prior notice under the Indenture at a redemption price equal to 100% of the principal amount of the Notes redeemed plus the Applicable Premium as of, and accrued and unpaid interest and Additional Interest, if any, to the redemption date (subject to the right of Holders on the relevant record date to receive interest due on the relevant interest payment date).

 

(d)                                 Any prepayment pursuant to this Paragraph 5 shall be made pursuant to the provisions of Sections 3.01 through 3.06 of the Indenture.  Unless the Issuer defaults in the payment of the applicable redemption price, interest will cease to accrue on the Notes or portions thereof called for redemption on the applicable redemption date.

 

6.                                      ***Redemption for Taxation Reasons***

 

The Notes may be redeemed, at the option of the Issuer, as a whole but not in part, upon giving not less than 30 days’ nor more than 60 days’ notice to Holders (which notice will be irrevocable), at a redemption price equal to 100% of the principal amount thereof, together with accrued and unpaid interest (including any Additional Amounts), if any, to the date fixed by the Issuer for redemption if, as a result of:

 

(1)                                 any change in, or amendment to, the laws (or any regulations or rulings promulgated thereunder) of a Taxing Jurisdiction affecting taxation; or

 

A-6

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(2)                                 any change in, or amendment to, an official position regarding the application or interpretation of such laws, regulations or rulings (including a holding, judgment or order by a court of competent jurisdiction),

 

which change or amendment becomes effective on or after the date on which such jurisdiction becomes a Taxing Jurisdiction, and the Issuer or any Guarantor, as the case may be, is, or on the next interest payment date would be, required to pay Additional Amounts, and such requirement cannot be avoided by the Issuer or any Guarantor, as the case may be, taking reasonable measures available to it; provided that for the avoidance of doubt, changing the jurisdiction of the Issuer or any Guarantor is not a reasonable measure for the purposes of Section 3.10 of the Indenture; provided, further, that no such notice of redemption will be given earlier than 90 days prior to the earliest date on which the Issuer or any Guarantor, as the case may be, would be obligated to pay such Additional Amounts if a payment in respect of the Notes were then due.

 

Prior to the mailing of any notice of redemption of the Notes pursuant to the foregoing, the Issuer will deliver to the Trustee:

 

(1)                                 an Officer’s Certificate stating that such change or amendment referred to in the prior paragraph has occurred, and describing the facts related thereto and stating that such requirement cannot be avoided by the Issuer or Guarantor, as the case may be, taking reasonable measures available to it; and

 

(2)                                 an Opinion of Counsel of recognized international standing stating that the requirement to pay such Additional Amounts results from such change or amendment referred to in the prior paragraph.

 

The Trustee will accept such certificate and opinion as sufficient evidence of the satisfaction of the conditions precedent described above, in which event it will be conclusive and binding on the Holders.

 

Any Notes that are redeemed will be cancelled.

 

7.                                      ***Mandatory Redemption***.

 

(a)                                 The Issuer shall not be required to make sinking fund payments with respect to the Notes.  However, under certain circumstances, the Issuer may be required to offer to repurchase the Notes pursuant to Sections 3.09, 4.12 and 4.18 of the Indenture.

 

(b)                                 In addition, the Issuer and its Subsidiaries may acquire Notes by means other than a redemption or required repurchase whether by tender offer, open market purchases, negotiated transactions or otherwise, in accordance with applicable securities laws, so long as such acquisition does not otherwise violate the terms of this Indenture.

 

8.                                      ***Repurchase at Option of Holder***.

 

(a)                                 Upon the occurrence of a Change of Control, the Issuer shall make an offer to purchase (a “*Change of Control Offer*”) all Notes, and each Holder shall have the right to

 

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require the Issuer to repurchase all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereof) of such Holders’ Notes, at a purchase price equal to 101% of the principal amount thereof, plus accrued and unpaid interest and Additional Interest, if any, to the purchase date (subject to the right of Holders on the relevant record date to receive interest due on the relevant interest payment date).  The Issuer shall purchase all Notes validly tendered pursuant to the Change of Control Offer and not withdrawn.

 

(b)                                 If the Parent or one of the Restricted Subsidiaries consummates any Asset Sales, when the aggregate amount of Excess Proceeds exceeds $200.0 million, the Issuer shall commence an offer (an “*Asset Sale Offer*”) within 30 Business Days to all Holders of Notes and all holders of other Indebtedness that is *pari passu*with the Notes containing provisions similar to those set forth in the Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum principal amount of Notes (including any Additional Notes) and such other *pari passu*Indebtedness that may be purchased out of the Excess Proceeds at an offer price in cash equal to 100% of the principal amount thereof plus accrued and unpaid interest and Additional Interest thereon, if any, to the date of purchase, pursuant to Section 3.09 of the Indenture.  To the extent that the aggregate amount of Notes (including Additional Notes) and other *pari passu*Indebtedness validly and properly tendered and not withdrawn pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Issuer (or such Restricted Subsidiary) may use such deficiency for any purpose not otherwise prohibited by the Indenture.  If the aggregate principal amount of Notes and other *pari passu*Indebtedness validly and properly tendered and not withdrawn into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the Issuer or the trustee, agent or other similar party with respect to such other *pari passu*Indebtedness will select such to be purchased as described in Article 3 of the Indenture.  Holders of Notes that are the subject of an offer to purchase will receive an Asset Sale Offer from the Issuer prior to any related purchase date and may elect to have such Notes purchased by completing the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes.  Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.

 

9.                                      ***Notice of Redemption***.  The Issuer shall mail notice of redemption by first class mail at least 30 days but not more than 60 days before the redemption date to each Holder whose Notes are to be redeemed at its registered address, except that redemption notices may be mailed more than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of the Notes or a satisfaction or discharge of the Indenture.  Notes in denominations larger than $200,000 may be redeemed in part but only in whole multiples of $1,000 in excess thereof, unless all of the Notes held by a Holder are to be redeemed.  On and after the redemption date interest ceases to accrue on Notes or portions thereof called for redemption.

 

10.                               ***Denominations***,***Transfer***,***Exchange***.  The Notes are in registered form without coupons in denominations of $200,000 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 being redeemed in part.  Also, the Issuer need not exchange or register the

 

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transfer of any Notes for a period of 15 days before a selection of Notes to be redeemed or during the period between a record date and the corresponding interest payment date.

 

11.                               ***Persons Deemed Owners***.  The registered holder of a Note may be treated as its owner for all purposes.

 

12.                               ***Amendment***,***Supplement and Waiver***.  Subject to certain exceptions, the Indenture or the Guarantees or 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, without limitation, Additional Notes, if any) voting as a single class (including consents obtained in connection with a tender offer or exchange offer for, or purchase of, the Notes), and, subject to Sections 6.04 and 6.07 of the Indenture, any existing Default or Event of Default or compliance with any provision of the Indenture, the Notes or the Guarantees may be waived with the consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes (including, without limitation, Additional Notes, if any) voting as a single class.  Without the consent of any Holder, the Indenture, the Notes or the Guarantees may be amended or supplemented to:  (1) cure any ambiguity, mistake, defect or inconsistency, (2) provide for uncertificated Notes in addition to or in place of certificated Notes, (3) provide for the assumption by a successor corporation of the obligations of the Issuer or Guarantors under the Notes, the Indenture and/or a Guarantee in the case of a merger or consolidation or sale of all or substantially all of the assets of the Issuer or the assets of such Guarantor, (4) make any change that would provide any additional rights or benefits to the Holders of Notes or that does not adversely affect the legal rights under the Indenture of any such Holder, (5) make any change to comply with any requirement of the SEC in connection with the qualification of the Indenture under the TIA, (6) add covenants for the benefit of the Holders or to surrender any right or power conferred upon the Issuer or any Guarantors, (7) add a Guarantor under the Indenture, (8) conform the text of the Notes, the Indenture, or the Guarantees to any provision of the “Description of Notes” to the extent that such provision in the “Description of Notes” was intended to be a verbatim recitation of a provision of the Notes, the Indenture or the Guarantee, (9) provide for the issuance of Additional Notes in accordance with the limitations as set forth in the Indenture, (10) provide for a successor trustee in accordance with the terms of the Indenture or (11) to otherwise comply with any requirement of the Indenture, or to comply with the rules of any applicable securities depositary.

 

13.                               ***Defaults and Remedies***.  Each of the following is an Event of Default under the Indenture:  (1) default for 30 days in the payment when due of interest on, or Additional Interest with respect to, the Notes; (2) default in payment when due of principal of, or premium, if any, on the Notes; (3) failure by the Parent or any Restricted Subsidiary to comply with Section 5.01 or with Section 4.18 of the Indenture; (4) failure by the Parent or any Restricted Subsidiary for 60 days after notice to comply with any covenant or agreement in the Indenture or the Notes after written notice thereof is given to the Issuer by the Trustee or to the Parent and the Restricted Subsidiaries and to the Trustee by Holders of at least 25% in aggregate principal amount of the then outstanding Notes voting as a single class; (5) default under any agreement, bond, mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by the Parent or any Restricted Subsidiary (or the payment of which is guaranteed by the Parent or any Restricted Subsidiary) whether such Indebtedness or guarantee now exists, or is created after the date of the Indenture,

 

A-9

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if that default (A) is caused by a failure to pay any scheduled installment of principal on such Indebtedness prior to the expiration of the grace period provided in such Indebtedness on the date of such default (a “*Payment Default*”); or (B) results in the acceleration of such Indebtedness prior to its express maturity, and in each such case, the principal amount of any such Indebtedness, together with the principal amount of any other such Indebtedness under which there has been a Payment Default or the maturity of which has been so accelerated, aggregates $250.0 million or more, *provided*, *however*, where (i) neither the Parent nor any Restricted Subsidiary has general liability with respect to such Indebtedness, and (ii) the creditor has agreed in writing that such creditor’s recourse is solely to specified assets or Unrestricted Subsidiaries, the amount of such Indebtedness shall be deemed to be the lesser of (x) the principal amount of such Indebtedness, and (y) the fair market value of such specified assets to which the creditor has recourse; (6) failure by the Parent, the Issuer or any Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary to pay final and non-appealable judgments entered by a court or courts of competent jurisdiction aggregating in excess of $250.0 million (net of any amounts covered by insurance), which judgments are not paid, discharged or stayed for a period of 60 days; (7) except as permitted by the Indenture, any Guarantee of a Significant Subsidiary, or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or any Guarantor that is a Significant Subsidiary, or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, or any Person acting on behalf of any Guarantor that is a Significant Subsidiary, or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, shall deny or disaffirm in writing its obligations under its Guarantee; or (8) certain events of bankruptcy or insolvency described in the Indenture with respect to the Parent, the Issuer or any Restricted Subsidiary that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary.  If any Event of Default occurs and is continuing, the Trustee or the Holders of not less than 25% in aggregate principal amount of the Notes then outstanding may declare all the Notes to be due and payable.  Notwithstanding the foregoing, in the case of an Event of Default arising from certain events of bankruptcy or insolvency, all outstanding Notes shall become due and payable 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 notice of any continuing Default or Event of Default (except a Default or Event of Default relating to the payment of principal, premium, if any, or interest or Additional Interest, if any) if it determines that withholding notice is in their interest.  The Holders of a majority in aggregate principal amount of the Notes then outstanding by notice to the Trustee may on behalf of the Holders of all of the Notes 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 principal, premium, if any, interest or Additional Interest, if any, on the Notes.  The Issuer is required to deliver to the Trustee annually a statement regarding compliance with the Indenture, and the Issuer is required upon becoming aware of any Default or Event of Default, to deliver to the Trustee a statement specifying such Default or Event of Default.

 

A-10

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14.                               ***Trustee Dealings with Issuer***.  The Trustee, in its individual or any other capacity, may make loans to, accept deposits from, and perform services for the Issuer or its Affiliates, and may otherwise deal with the Issuer or its Affiliates, as if it were not the Trustee.  However, in the event that the Trustee acquires any conflicting interest it must eliminate such conflict within 90 days, apply to the SEC for permission to continue as Trustee or resign.  Any Agent may do the same with like rights and duties.  The Trustee is also subject to Sections 7.10 and 7.11 of the Indenture.

 

15.                               ***No Recourse Against Others***.  No past, present or future director, officer, employee, partner, manager, agent, member, incorporator (or Person forming any limited liability company) or stockholder of the Issuer or of any Guarantor, as such, shall have any liability for any obligations of the Issuer or any Guarantor under the Indenture, the Notes, the Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation.  Each Holder by accepting a Note and the guarantee waives and releases all such liability.  The waiver and release are part of the consideration for the issuance of the Notes and guarantee.  Such waiver may not be effective to waive liabilities under the federal securities laws and it is the view of the SEC that such a waiver is against public policy.

 

16.                               ***Authentication***.  This Note shall not be valid until authenticated by the manual signature of the Trustee or an authenticating agent.

 

17.                               ***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).

 

18.                               ***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.

 

19.                               ***Additional Rights of Holders of Restricted Global Notes and Restricted Definitive Notes***.  In addition to the rights provided to Holders of Notes under the Indenture, Holders of Restricted Global Notes and Restricted Definitive Notes that are Initial Notes shall have all the rights set forth in the Registration Rights Agreement, dated as of March 12, 2014, between the Issuer, the Guarantors and the Initial Purchasers named therein or, in the case of Additional Notes, Holders of Restricted Global Notes and Restricted Definitive Notes shall have the rights set forth in one or more registration rights agreements, if any, among the Issuer and the other parties thereto, relating to rights given by the Issuer to the purchasers of any Additional Notes.

 

20.                               ***Governing Law***.  The internal law of the State of New York shall govern and be used to construe the Indenture, this Note and the Guarantees without giving effect to applicable principals of conflicts of law to the extent that the application of the laws of another jurisdiction would be required thereby.

 

A-11

----

 

The Issuer shall furnish to any Holder upon written request and without charge a copy of the Indenture.  Requests may be made to:

 

Grifols Worldwide Operations Limited Embassy House

Herbert Park Lane

Ballsbridge

Dublin 4

Ireland Attention:  The Directors

 

A-12

----

 

**ASSIGNMENT FORM**

 

To assign this Note, fill in the form below:  (I) or (we) assign and transfer this Note to

 
|                                                       |
|------------------------------------------------------------|
| (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 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:                                                     |   |
|        |                                                                |        |        |  |  |

 

A-13

----

 

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   decrease (or   increase)** | ** ** | **Signature of   authorized   signatory of   Trustee or   Note   Custodian** | ** ** |
|-----------------------------|------------|-------------------------------------------------------------------------------------------------|------------|-------------------------------------------------------------------------------------------------|------------|------------------------------------------------------------------------------------------------------------|------------|---------------------------------------------------------------------------------------------|------------|
| ** **                  | ** ** | ** **                                                                                      | ** ** | ** **                                                                                      | ** ** | ** **                                                                                                 | ** ** | ** **                                                                                  | ** ** |
| ** **                  | ** ** | ** **                                                                                      | ** ** | ** **                                                                                      | ** ** | ** **                                                                                                 | ** ** | ** **                                                                                  | ** ** |
| ** **                  | ** ** | ** **                                                                                      | ** ** | ** **                                                                                      | ** ** | ** **                                                                                                 | ** ** | ** **                                                                                  | ** ** |

 

A-14

----

 

OPTION OF HOLDER TO ELECT PURCHASE

 

If you want to elect to have this Note purchased in its entirety by the Issuer pursuant to Section 4.12 or 4.18 of the Indenture, check the applicable box:

 

Section 4.12 o

 

Section 4.18 o

 

If you want to elect to have only a part of the principal amount of this Note purchased by the Issuer pursuant to Section 4.12 or 4.18 of the Indenture, state the portion of such amount:  $      .

 

 
| Dated: |                                                                 |   | Your   Signature: |   |
|--------|----------------------------------------------------------------------|--------|-------------------|--------|
|   | (Sign   exactly as your name appears on the other side of this Note) |

 

Signature Guarantee:

 

(Signature must be guaranteed by a financial institution that is a member of the Securities Transfer Agent Medallion Program (“STAMP”), the Stock Exchange Medallion Program (“SEMP”), the New York Stock Exchange, Inc.  Medallion Signature Program (“MSP”) or such other signature guarantee program as may be determined by the Security Registrar in addition to, or in substitution for, STAMP, SEMP or MSP, all in accordance with the Securities Exchange Act of 1934, as amended.)

 

A-15

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**EXHIBIT B**

 

**FORM OF CERTIFICATE OF TRANSFER**

 

Grifols Worldwide Operations Limited Embassy House

Herbert Park Lane

Ballsbridge

Dublin 4

Ireland Attention:  The Directors

 

The Bank of New York Mellon Trust Company, N.A., as Trustee 10161 Centurion Parkway

Jacksonville, FL 32256

Telecopier No.: (904) 645-1921

Attention: Corporate Trust Administration

 

Re:  5.25% Senior Notes due 2022

 

Reference is hereby made to the Indenture, dated as of March 12, 2014 (the “*Indenture*”), between Grifols Worldwide Operations Limited, as issuer (the “*Issuer*”), and The Bank of New York Mellon Trust Company, N.A., as trustee.  Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.

 

[         ] (the “*Transferor*”) owns and proposes to transfer the Note[s] or interest in such Note[s] specified in Annex A hereto, in the principal amount of $[ ] in such Note[s] or interests (the “*Transfer*”), to [       ] (the “*Transferee*”), as further specified in Annex A hereto.  In connection with the Transfer, the Transferor hereby certifies that:

 

**[CHECK ALL THAT APPLY]**

 

1.                                      **o********Check if Transferee will take delivery of a beneficial interest in the 144A Global Note or a Definitive Note Pursuant to Rule 144A**.  The Transfer is being effected pursuant to and in accordance with Rule 144A under the United States Securities Act of 1933, as amended (the “*Securities Act*”), and, accordingly, the Transferor hereby further certifies that the beneficial interest or Definitive Note is being transferred to a Person that the Transferor reasonably believed and believes is purchasing the beneficial interest or Definitive Note for its own account, or for one or more accounts with respect to which such Person exercises sole investment discretion, and such Person and each such account is a “qualified institutional buyer” within the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A and such Transfer is in compliance with any applicable blue sky securities laws of any state of the United States.  Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the 144A Global Note and/or the Definitive Note and in the Indenture and the Securities Act.

 

B-1

----

 

2.                                      **o********Check if Transferee will take delivery of a beneficial interest in the Regulation S Global Note or a Definitive Note pursuant to Regulation S**.  The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and, accordingly, the Transferor hereby further certifies that (i) the Transfer is not being made to a Person in the United States and (x) at the time the buy order was originated, the Transferee was outside the United States or such Transferor and any Person acting on its behalf reasonably believed and believes that the Transferee was outside the United States or (y) the transaction was executed in, on or through the facilities of a designated offshore securities market and neither such Transferor nor any Person acting on its behalf knows that the transaction was prearranged with a buyer in the United States, (ii) no directed selling efforts have been made in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S under the Securities Act, (iii) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act and (iv) if the proposed transfer is being made prior to the expiration of the Distribution Compliance Period, the transfer is not being made to a U.S. Person or for the account or benefit of a U.S. Person. Upon consummation of the proposed transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on Transfer enumerated in the Private Placement Legend printed on the Regulation S Global Note and/or the Definitive Note and in the Indenture and the Securities Act.

 

3.                                      **o********Check and complete if Transferee will take delivery of a beneficial interest in the Restricted Global Note or a Restricted Definitive Note pursuant to any provision of the Securities Act other than Rule 144A or Regulation S**.  The Transfer is being effected in compliance with the transfer restrictions applicable to beneficial interests in Restricted Global Notes and Restricted Definitive Notes and pursuant to and in accordance with the Securities Act and any applicable blue sky securities laws of any state of the United States, and accordingly the Transferor hereby further certifies that (check):

 

**o** such Transfer is being effected to the Issuer or a subsidiary thereof.

 

4.                                      **o********Check if Transferee will take delivery of a beneficial interest in an Unrestricted Global Note or of an Unrestricted Definitive Note**.

 

(a)                                 **o****Check if Transfer is pursuant to Rule 144. **(i) The Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act.  Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on Restricted Definitive Notes and in the Indenture.

 

(b)                                 **o****Check if Transfer is Pursuant to Regulation S. **(i) The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the United States and (ii) the restrictions on transfer

 

B-2

----

 

contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act.  Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on Restricted Definitive Notes and in the Indenture.

 

(c)                                  **o****Check if Transfer is Pursuant to Other Exemption. **(i) The Transfer is being effected pursuant to and in compliance with an exemption from the registration requirements of the Securities Act other than Rule 144, Rule 903 or Rule 904 and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any State of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act.  Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will not be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes or Restricted Definitive Notes and in the Indenture.

 

This certificate and the statements contained herein are made for your benefit and the benefit of the Issuer.

 
|   |                          |
|--------|-------------------------------|
|   | [Insert   Name of Transferor] |
|   |                          |
|   | By:                           |   |
|   |                          | Name: |
|   |                          | Title: |
|   |                          | Dated: |   |

 

B-3

----

 

**ANNEX A TO CERTIFICATE OF TRANSFER**

 

1.                                      The Transferor owns and proposes to transfer the following:

 

[CHECK ONE OF (A) OR (B)]

 

(a)                                 o a beneficial interest in the:

 

(i)                                     o 144A Global Note (CUSIP 398435 AA5), or

 

(ii)                                  o Regulation S Global Note (CUSIP G41246 AA0), or

 

(b)                                 o a Restricted Definitive Note.

 

2.                                      After the Transfer the Transferee will hold:

 

[CHECK ONE]

 

(a)                                 o a beneficial interest in the:

 

(i)                                     o 144A Global Note (CUSIP 398435 AA5), or

 

(ii)                                  o Regulation S Global Note (CUSIP G41246 AA0), or

 

(iii)                               o Unrestricted Global Note (CUSIP      ); or

 

(b)                                 o a Restricted Definitive Note; or

 

(c)                                  o an Unrestricted Definitive Note, in accordance with the terms of the Indenture.

 

B-4

----

** **

**EXHIBIT C**

 

**FORM OF CERTIFICATE OF EXCHANGE**

 

Grifols Worldwide Operations Limited Embassy House

Herbert Park Lane

Ballsbridge

Dublin 4

Ireland Attention:  The Directors

 

The Bank of New York Mellon Trust Company, N.A., 10161 Centurion Parkway

Jacksonville, FL 32256

Telecopier No.: (904) 645-1921

Attention: Corporate Trust Administration

 

Re:  5.25% Senior Notes due 2022

 

(CUSIP         )

 

Reference is hereby made to the Indenture, dated as of March 12, 2014 (the “*Indenture*”), between Grifols Worldwide Operations Limited, as issuer (the “*Issuer*”), and The Bank of New York Mellon Trust Company, N.A., as trustee.  Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.

 

[          ] (the “*Owner*”) owns and proposes to exchange the Note[s] or interest in such Note[s] specified herein, in the principal amount of $[     ] in such Note[s] or interests (the “*Exchange*”).  In connection with the Exchange, the Owner hereby certifies that:

 

5.                                      **Exchange of Restricted Definitive Notes or Beneficial Interests in a Restricted Global Note for Unrestricted Definitive Notes or Beneficial Interests in an Unrestricted Global Note**

 

(a)                                 o**Check if Exchange is from beneficial interest in a Restricted Global Note to beneficial interest in an Unrestricted Global Note**.  In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for a beneficial interest in an Unrestricted Global Note in an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Global Notes and pursuant to and in accordance with the United States Securities Act of 1933, as amended (the “*Securities Act*”), (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the beneficial interest in an Unrestricted Global Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.

 

C-1

----

 

(b)                                 o**Check if Exchange is from beneficial interest in a Restricted Global Note to Unrestricted Definitive Note. **In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Definitive Note is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the Definitive Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.

 

(c)                                  o**Check if Exchange is from Restricted Definitive Note to beneficial interest in an Unrestricted Global Note. **In connection with the Owners Exchange of a Restricted Definitive Note for a beneficial interest in an Unrestricted Global Note, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owners own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the beneficial interest is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.

 

(d)                                 o**Check if Exchange is from Restricted Definitive Note to Unrestricted Definitive Note**.  In connection with the Owners Exchange of a Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Unrestricted Definitive Note is being acquired for the Owners own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the Unrestricted Definitive Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.

 

6.                                      **Exchange of Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes for Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes**

 

(a)                                 o**Check if Exchange is from beneficial interest in a Restricted Global Note to Restricted Definitive Note**.  In connection with the Exchange of the Owners beneficial interest in a Restricted Global Note for a Restricted Definitive Note with an equal principal amount, the Owner hereby certifies that the Restricted Definitive Note is being acquired for the Owners own account without transfer.  Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the Restricted Definitive Note issued will continue to be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Definitive Note and in the Indenture and the Securities Act.

 

C-2

----

 

(b)                                 o**Check if Exchange is from Restricted Definitive Note to beneficial interest in a Restricted Global Note**.  In connection with the Exchange of the Owners Restricted Definitive Note for a beneficial interest in the [CHECK ONE] o 144A Global Note, o Regulation S Global Note with an equal principal amount, the owner hereby certifies (i) the beneficial interest is being acquired for the Owners own account without transfer and (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities Act, and in compliance with any applicable blue sky securities laws of any state of the United States.  Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the beneficial interest issued will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the relevant Restricted Global Note and in the Indenture and the Securities Act.

 

This certificate and the statements contained herein are made for your benefit and the benefit of the Issuer.

 

 
|   |                          |
|--------|-------------------------------|
|   | [Insert   Name of Transferor] |
|   |                          |   |
|   | By:                           |   |
|   |                          | Name: |
|   |                          | Title: |
|   |                          | Dated: |   |

 

C-3

----

 

**EXHIBIT D**

 

**FORM OF NOTATION OF GUARANTEE**

 

For value received, each Guarantor (which term includes any successor Person under the Indenture), jointly and severally, unconditionally guarantees, to the extent set forth in the Indenture and subject to the provisions in the Indenture, dated as of March 12, 2014 (the “*Indenture*”), between Grifols Worldwide Operations Limited, as issuer (the “*Issuer*”), and The Bank of New York Mellon Trust Company, N.A., as trustee (the “*Trustee*”), (a) the due and punctual payment of the principal of, premium, if any, and interest on the Notes (as defined in the Indenture), whether at maturity, by acceleration, redemption or otherwise, the due and punctual payment of interest on overdue principal and premium, if any, and, to the extent permitted by law, interest, and the due and punctual performance of all other obligations of the Issuer to the Holders or the Trustee all in accordance with the terms of the Indenture and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise.  The obligations of the Guarantors to the Holders of Notes and to the Trustee pursuant to the Guarantee and the Indenture are expressly set forth in Article 10 of the Indenture and reference is hereby made to the Indenture for the precise terms of the Guarantee.  This Guarantee is subject to release as and to the extent set forth in Sections 10.04 and 10.05 of the Indenture.  Each Holder of a Note, by accepting the same agrees to and shall be bound by such provisions.  Capitalized terms used herein and not defined are used herein as so defined in the Indenture.

 
|   | **GUARANTORS:**    |
|--------|--------------------|
|   |               |
|   | [ADD   GUARANTORS] |
|   |               |   |
|   |               |   |
|   | By:                |   |
|   |               | Name: |
|   |               | Title: |

 

D-1

----

 

**EXHIBIT E**

 

**[Reserved]**

 

E-1

----

 

**EXHIBIT F**

 

**FORM OF SUPPLEMENTAL INDENTURE TO BE DELIVERED BY SUBSEQUENT GUARANTORS**

 

SUPPLEMENTAL INDENTURE (“this Supplemental Indenture”) dated as of [ ], among [GUARANTOR] (“the Guaranteeing Subsidiary”), Grifols Worldwide Operations Limited (“the Issuer”), and The Bank of New York Mellon Trust Company, N.A., as trustee under the indenture referred to below (the “Trustee”).

 

W I T N E S S E T H:

 

WHEREAS, the Issuer and the Trustee have heretofore executed an indenture, dated March 12, 2014, providing for the initial issuance of $1,000,000,000 aggregate principal amount of 5.25% Senior Notes due 2022 (the “Notes”) on the terms and subject to the conditions set forth in the Indenture;

 

WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental indenture pursuant to which the Guaranteeing Subsidiary shall unconditionally guarantee all of the Issuer’s obligations under the Notes and the Indenture on the terms and conditions set forth herein and under the Indenture (the “Guarantee”); and

 

WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute and deliver this Supplemental Indenture.

 

NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:

 

(1)                                 “Capitalized Terms”.  Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.

 

(2)                                 “Agreement to Guarantee”.  The Guaranteeing Subsidiary hereby agrees as follows:

 

(a)                                 The Guaranteeing Subsidiary hereby becomes a party to the Indenture as a Guarantor and as such will have all of the rights and be subject to all of the obligations and agreements of a Guarantor under the Indenture.  The Guaranteeing Subsidiary agrees to be bound by all of the provisions of the Indenture applicable to a Guarantor and to perform all of the obligations and agreements of a Guarantor under the Indenture.

 

(b)                                 The Guaranteeing Subsidiary agrees, on a joint and several basis with all the existing Guarantors, to fully, unconditionally and irrevocably Guarantee to each Holder of the Notes and the Trustee the Obligations pursuant to Article 10 of the Indenture on a senior basis.

 

F-1

----

 

(3)                                 Execution and Delivery.  The Guaranteeing Subsidiary agrees that the Guarantee shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Guarantee on the Notes.

 

(4)                                 Governing Law.  THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.

 

(5)                                 Counterparts.  The parties may sign any number of copies of this Supplemental Indenture.  Each signed copy shall be an original, but all of them together represent the same agreement.

 

(6)                                 Effect of Headings.  The Section headings herein are for convenience only and shall not affect the construction hereof.

 

(7)                                 The Trustee.  The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Guaranteeing Subsidiary.

 

F-2

----

 

IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed, all as of the date first above written.

 
|                                              |                                                          |
|---------------------------------------------------|---------------------------------------------------------------|
|                                              | [GUARANTEEING   SUBSIDIARY], as Guarantor                     |
|                                              |                                                          |
|                                              | By:                                                           |   |
|                                              |                                                          | Name: |
|                                              |                                                          | Title: |
|                                              |                                                          |   |
|                                              | The   Bank of New York Mellon Trust Company, N.A., as Trustee |
|                                              |                                                          |   |
|                                              | By:                                                           |   |
|                                              |                                                          | Name: |
|                                              |                                                          | Title: |
|                                              |                                                          |
| Acknowledged   by:                                |                                                          |
|                                              |                                                          |
| Grifols   Worldwide Operations Limited, as Issuer |                                                          |
|                                              |                                                          |
| By:                                               |                                                          |   |   |
|                                              | Name:                                                         |   |
|                                              | Title:                                                        |   |
|                                                   |                                                               |  |  |  |

 

F-3

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