UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant
to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): December 9, 2015
Mylan N.V.
(Exact name
of registrant as specified in its charter)
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| Netherlands |
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333-199861 |
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98-1189497 |
| (State or Other Jurisdiction
of Incorporation) |
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(Commission
File Number) |
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(I.R.S. Employer
Identification No.) |
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| Building 4, Trident Place, Mosquito Way,
Hatfield Hertfordshire |
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AL10 9UL |
| (Address of Principal Executive Offices) |
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(Zip Code) |
+44 (0) 1707 853 000
(Registrant’s telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the
following provisions:
| ¨ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
| Item 1.01 |
Entry into a Material Definitive Agreement. |
On December 9, 2015, Mylan N.V., a
public limited liability company (naamloze vennootschap) incorporated and existing under the laws of the Netherlands (the “Company”), announced that it has completed its offering of $500,000,000 aggregate principal amount of its
3.000% senior notes due 2018 (the “2018 Notes”) and $500,000,000 aggregate principal amount of its 3.750% senior notes due 2020 (together with the 2018 Notes, the “Notes”). In connection with the issuance of the Notes, the
Company entered into an indenture, dated as of December 9, 2015 (the “Indenture”), among the Company, Mylan Inc., as guarantor (the “Guarantor”), and The Bank of New York Mellon, as trustee (the “Trustee”), and a
Registration Rights Agreement dated as of December 9, 2015 (the “Registration Rights Agreement”), among the Company, the Guarantor, and Goldman, Sachs & Co., Deutsche Bank Securities Inc. and Mitsubishi UFJ Securities (USA),
Inc., as representatives of the several initial purchasers of the Notes.
The Notes were issued in a private offering exempt from the
registration requirements of the Securities Act of 1933, as amended (the “Securities Act”), to qualified institutional buyers in accordance with Rule 144A and to persons outside of the United States pursuant to Regulation S under the
Securities Act.
Indenture
The Notes are the Company’s senior unsecured indebtedness and are guaranteed on a senior unsecured basis by the Guarantor. In addition, if
a subsidiary of the Company becomes a guarantor or an obligor in respect of certain indebtedness, such subsidiary will guarantee the Notes in the Indenture. The 2018 Notes bear interest at a rate of 3.000% per annum, accruing from
December 9, 2015. Interest on the 2018 Notes is payable semi-annually in arrears on June 15 and December 15 of each year, commencing on June 15, 2016. The 2018 Notes will mature on December 15, 2018, subject to earlier
repurchase or redemption in accordance with the terms of the Indenture. The 2020 Notes bear interest at a rate of 3.750% per annum, accruing from December 9, 2015. Interest on the 2020 Notes is payable semi-annually in arrears on
June 15 and December 15 of each year, commencing on June 15, 2016. The 2020 Notes will mature on December 15, 2020, subject to earlier repurchase or redemption in accordance with the terms of the Indenture.
At any time and from time to time prior to their maturity date, in the case of the 2018 Notes, and at any time and from time to time prior to
the date that is one month prior to their maturity date, in the case of the 2020 Notes, the Company may redeem some or all of the Notes of the applicable series, upon not less than 30 nor more than 60 days’ prior notice, at a price equal to the
greater of (1) 100% of the aggregate principal amount of any Notes being redeemed, and (2) the sum of the present values of the
remaining scheduled payments of principal and interest on the Notes being redeemed, in the case of the 2018 Notes, that would be due to their maturity date, and in the case of the 2020 Notes,
that would be due if the 2020 Notes matured on the date that is one month prior to their maturity date, in each case, not including unpaid interest accrued to, but excluding, the redemption date, discounted to the redemption date on a semi-annual
basis (assuming a 360-day year consisting of twelve 30-day months) at the treasury rate plus 30 basis points with respect to the 2018 Notes and 35 basis points with respect to the 2020 Notes, plus, in each case, unpaid interest on the Notes being
redeemed accrued to, but excluding, the redemption date. If the Company experiences certain change of control events with respect to a series of Notes, it must offer to purchase all Notes of such series at a purchase price equal to 101% of the
principal amount of such notes, plus accrued but unpaid interest, if any, to (but not including) the date of purchase.
The Indenture
contains covenants that, among other things, restrict the Company’s ability and the ability of certain of its subsidiaries to enter into sale and leaseback transactions; create liens; and consolidate, merge or sell all or substantially all of
the Company’s assets. The Indenture also provides for customary events of default (subject in certain cases to customary grace and cure periods), which include nonpayment, breach of covenants, payment defaults or acceleration of other
indebtedness, failure to pay certain judgments and certain events of bankruptcy and insolvency. These covenants and events of default are subject to a number of important qualifications, limitations and exceptions that are described in the
Indenture. If an event of default with respect to the Notes of a series occurs under the Indenture, the principal amount of all of the Notes of such series then outstanding, plus accrued but unpaid interest to the date of acceleration, may become
immediately due and payable.
The Company intends to use the net proceeds from this offering (i) to repay amounts outstanding under
the Revolving Credit Agreement, dated as of December 19, 2014, among Mylan Inc., as borrower, the Company, as guarantor, the lenders party thereto, and Bank of America, N.A., as administrative agent, as amended by Amendment No. 1 to
Revolving Credit Agreement dated as of May 1, 2015, and as further amended by Amendment No. 2 to Revolving Credit Agreement dated as of October 28, 2015, (ii) to repay amounts outstanding under the accounts receivable
securitization facility of Mylan Pharmaceuticals Inc., a wholly owned subsidiary of the Company, and (iii) to finance a portion of the repurchase of ordinary shares of the Company pursuant to the Company’s previously announced share
repurchase program.
The foregoing summary does not purport to be complete and is qualified in its entirety by reference to the complete
terms of the Indenture, a copy of which is filed as Exhibit 4.1 hereto, and the Notes, the forms of which are contained in Exhibit 4.1, all of which are incorporated herein by reference.
Registration Rights Agreement
In
connection with the offering of the Notes, the Company entered into the Registration Rights Agreement pursuant to which the Company and the Guarantor will use commercially reasonable efforts (1) to file a registration statement (the
“Exchange Offer Registration Statement”) with respect to an offer to exchange each series of Notes (each, an “Exchange Offer”) for new notes with the same aggregate principal amount and terms substantially identical in all
material respects to the applicable series of Notes (except for the provisions relating to the transfer restrictions and payment of additional interest); (2) to cause the Exchange Offer Registration Statement to be declared effective by the
Securities and Exchange Commission (the “SEC”) under the Securities Act; and (3) to consummate the Exchange Offer not later than 365 days following the date of issuance of the Notes (the “Exchange Date”).
If the Company and the Guarantor determine that the Exchange Offer would violate any applicable law or applicable interpretations of the SEC
or upon receipt of a written request (a “Shelf Request”) from any initial purchaser representing that it holds Notes that are or were ineligible to be
exchanged in the Exchange Offer, the Company will use commercially reasonable efforts to (1) file a shelf registration statement covering resales of the Notes; (2) cause such shelf
registration statement to become effective under the Securities Act; and (3) keep the shelf registration statement effective until the earliest of the date (i) when a registration statement with respect to such Notes has become effective
under the Securities Act and such Notes have been exchanged or disposed of pursuant to such registration statement, (ii) when such Notes cease to be outstanding, (iii) except in the case of Notes that are held by an initial purchaser and
that are ineligible to be exchanged in the Exchange Offer, when the Exchange Offer is consummated, (iv) when such Notes are freely tradeable, without restriction, under federal or state securities laws, (v) the date that is one year after
the issue date of the Notes and (vi) the date when holders of the Notes, other than holders that are “affiliates” (as defined in Rule 144 promulgated under the Securities Act (“Rule 144”)) of the Company, are able to sell
such Notes without restriction, and without reliance as to the availability of current public information, pursuant to Rule 144 (such date, the “Registration Rights Expiration Date”).
As to any series of Notes, if (1) the Exchange Offer, with respect to such series of notes, is not completed on or prior to the Exchange
Date, (2) the shelf registration statement with respect to such series of notes, if required because the Company and the Guarantor determine that the Exchange Offer would violate any applicable law or applicable interpretations of the SEC, has
not become effective on or prior to the Exchange Date, (3) if the Company receives a Shelf Request, the shelf registration statement required to be filed thereby has not become effective by the later of (a) the Exchange Date and
(b) 90 days after delivery of such Shelf Request or (4) the shelf registration statement, if required by the Registration Rights Agreement, has become effective and thereafter ceases to be effective or the prospectus contained therein
ceases to be usable, in each case whether or not permitted by the registration rights agreement, at any time prior to the Registration Rights Expiration Date, and such failure to remain effective or usable exists for more than 180 days (whether or
not consecutive) in any 12-month period (each such event referred to in clauses (1) through (4), a “Registration Default”), then the interest rate on the Notes of such series will be increased by (i) 0.25% per annum for the
first 90-day period beginning on the day immediately following such Registration Default and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until and including the date such Registration
Default ends, up to a maximum increase of 0.50% per annum.
The foregoing summary does not purport to be complete and is qualified in
its entirety by reference to the complete terms of the Registration Rights Agreement, a copy of which is filed herewith as Exhibit 10.1 and is incorporated by reference herein.
The initial purchasers of the Notes have, from time to time, performed, are currently performing and may in the future perform, various
financial advisory and commercial and investment banking services for the Company, for which they received or will receive customary fees and expenses.
| Item 2.03 |
Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant |
The information included in Item 1.01 with respect to the Indenture is incorporated by reference into this item.
| Item 9.01 |
Financial Statements and Exhibits. |
(d) Exhibits.
To the extent that the Indenture and the Registration Rights Agreement included or incorporated by reference as an exhibit to this Current
Report contain representations and warranties by the Company,
those representations and warranties were made solely for the benefit of the other parties to the Indenture and the Registration Rights Agreement and (i) were not intended to be treated as
categorical statements of fact, but rather as a way of allocating the risk to the Company if those statements prove to be inaccurate; (ii) may have been qualified in the Indenture and the Registration Rights Agreement by disclosures that were
made to the other parties in connection with the negotiation of the applicable agreement; (iii) may apply contract standards of “materiality” that are different from “materiality” under the applicable securities laws; and
(iv) were made only as of the date of the applicable agreement or such other date or dates as may be specified in the agreement.
We
acknowledge that, notwithstanding the inclusion of the foregoing cautionary statements, we are responsible for considering whether additional specific disclosures of material information regarding material contractual provisions are required to make
the statements in this Current Report not misleading.
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| Exhibit
Number |
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Description |
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| 4.1 |
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Indenture dated as of December 9, 2015, among the Company, Mylan Inc., as guarantor, and The Bank of New York Mellon, as trustee. |
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| 4.2 |
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Form of 3.000% Senior Notes due 2018 (included in Exhibit 4.1). |
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| 4.3 |
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Form of 3.750% Senior Notes due 2020 (included in Exhibit 4.1). |
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| 10.1 |
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Registration Rights Agreement dated as of December 9, 2015, among the Company, Mylan Inc., as guarantor, and Goldman, Sachs & Co., Deutsche Bank Securities Inc. and Mitsubishi UFJ Securities (USA), Inc., as representatives
of the initial purchasers of the Notes. |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned hereunto duly authorized.
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MYLAN N.V. |
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| Date: December 15, 2015 |
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By: |
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/s/ John D. Sheehan |
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John D. Sheehan |
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Executive Vice President and Chief Financial Officer |
Exhibit Index
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| Exhibit
Number |
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Description |
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| 4.1 |
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Indenture dated as of December 9, 2015, among the Company, Mylan Inc., as guarantor, and The Bank of New York Mellon, as trustee. |
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| 4.2 |
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Form of 3.000% Senior Notes due 2018 (included in Exhibit 4.1). |
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| 4.3 |
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Form of 3.750% Senior Notes due 2020 (included in Exhibit 4.1). |
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| 10.1 |
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Registration Rights Agreement dated as of December 9, 2015, among the Company, Mylan Inc., as guarantor, and Goldman, Sachs & Co., Deutsche Bank Securities Inc. and Mitsubishi UFJ Securities (USA), Inc., as representatives
of the initial purchasers of the Notes. |
Exhibit 4.1
EXECUTION VERSION
MYLAN N.V.
3.000% SENIOR NOTES DUE 2018
3.750% SENIOR NOTES DUE 2020
INDENTURE
Dated as of
December 9, 2015
THE BANK OF NEW YORK MELLON
as Trustee
TABLE OF CONTENTS
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Page |
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| ARTICLE I |
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| DEFINITIONS AND INCORPORATION BY REFERENCE |
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| Section 1.01. |
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Definitions. |
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1 |
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| Section 1.02. |
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Other Definitions. |
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15 |
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| Section 1.03. |
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Rules of Construction. |
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16 |
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| Section 1.04. |
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Incorporation by Reference of Trust Indenture Act. |
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17 |
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| ARTICLE II |
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| THE NOTES |
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| Section 2.01. |
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Amount of Notes. |
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17 |
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| Section 2.02. |
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Form and Dating. |
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17 |
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| Section 2.03. |
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Execution and Authentication. |
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18 |
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| Section 2.04. |
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Registrar and Paying Agent. |
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18 |
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| Section 2.05. |
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Paying Agent To Hold Money in Trust. |
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18 |
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| Section 2.06. |
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Holder Lists. |
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19 |
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| Section 2.07. |
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Transfer and Exchange. |
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19 |
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| Section 2.08. |
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Replacement Notes. |
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19 |
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| Section 2.09. |
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Outstanding Notes. |
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19 |
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| Section 2.10. |
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Treasury Notes. |
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20 |
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| Section 2.11. |
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Temporary Notes. |
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20 |
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| Section 2.12. |
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Cancellation. |
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20 |
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| Section 2.13. |
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Defaulted Interest. |
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20 |
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| Section 2.14. |
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CUSIP Number. |
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21 |
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| Section 2.15. |
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Deposit of Moneys. |
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21 |
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| Section 2.16. |
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Book-Entry Provisions for Global Notes. |
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21 |
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| Section 2.17. |
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Special Transfer Provisions. |
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22 |
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| Section 2.18. |
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Computation of Interest. |
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24 |
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| ARTICLE III |
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| REDEMPTION AND PREPAYMENT |
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| Section 3.01. |
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Election To Redeem; Notices to Trustee. |
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24 |
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| Section 3.02. |
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Selection by Trustee of Notes To Be Redeemed. |
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25 |
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| Section 3.03. |
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Notice of Redemption. |
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25 |
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| Section 3.04. |
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Effect of Notice of Redemption. |
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25 |
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| Section 3.05. |
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Deposit of Redemption Price. |
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26 |
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| Section 3.06. |
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Notes Redeemed in Part. |
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26 |
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| Section 3.07. |
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Optional Redemption. |
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26 |
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| Section 3.08. |
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Mandatory Redemption. |
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27 |
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| Section 3.09. |
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Tax Redemption. |
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27 |
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i
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| ARTICLE IV |
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| COVENANTS |
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| Section 4.01. |
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Payment of Principal, Premium and Interest. |
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27 |
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| Section 4.02. |
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Maintenance of Office or Agency. |
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27 |
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| Section 4.03. |
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Reports to Holders. |
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28 |
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| Section 4.04. |
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Corporate Existence. |
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28 |
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| Section 4.05. |
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Money for Notes Payments To Be Held in Trust. |
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28 |
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| Section 4.06. |
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Payment of Taxes and Other Claims. |
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29 |
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| Section 4.07. |
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Limitation on Liens. |
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29 |
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| Section 4.08. |
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Purchase of Notes Upon a Change of Control Repurchase Event. |
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30 |
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| Section 4.09. |
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Restrictions on Sale Leaseback Transactions. |
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31 |
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| Section 4.10. |
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Additional Guarantees. |
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31 |
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| Section 4.11. |
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Compliance Certificate. |
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31 |
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| Section 4.12. |
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Stay, Extension and Usury Laws. |
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32 |
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| Section 4.13. |
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Payments of Additional Amounts. |
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32 |
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| ARTICLE V |
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| SUCCESSORS |
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| Section 5.01. |
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Consolidation, Merger and Sale of Assets. |
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33 |
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| ARTICLE VI |
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| DEFAULTS AND REMEDIES |
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| Section 6.01. |
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Events of Default. |
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34 |
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| Section 6.02. |
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Acceleration of Maturity; Rescission. |
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35 |
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| Section 6.03. |
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Other Remedies. |
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36 |
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| Section 6.04. |
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Waiver of Past Defaults and Events of Default. |
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36 |
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| Section 6.05. |
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Control by Majority. |
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36 |
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| Section 6.06. |
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Limitation on Suits. |
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36 |
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| Section 6.07. |
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Rights of Holders To Receive Payment. |
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37 |
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| Section 6.08. |
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Collection Suit by Trustee. |
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37 |
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| Section 6.09. |
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Trustee May File Proofs of Claim. |
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37 |
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| Section 6.10. |
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Priorities. |
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37 |
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| Section 6.11. |
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Undertaking for Costs. |
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38 |
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| Section 6.12. |
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Delay or Omission Not Waiver. |
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38 |
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| ARTICLE VII |
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| TRUSTEE |
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| Section 7.01. |
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Duties of Trustee. |
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38 |
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| Section 7.02. |
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Rights of Trustee. |
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39 |
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ii
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| Section 7.03. |
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Individual Rights of Trustee. |
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40 |
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| Section 7.04. |
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Trustee’s Disclaimer. |
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40 |
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| Section 7.05. |
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Notice of Defaults. |
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40 |
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| Section 7.06. |
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Compensation and Indemnity. |
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41 |
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| Section 7.07. |
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Replacement of Trustee. |
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41 |
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| Section 7.08. |
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Successor Trustee by Consolidation, Merger, etc. |
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42 |
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| Section 7.09. |
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Eligibility; Disqualification. |
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42 |
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| Section 7.10. |
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Reports by Trustee to Holders. |
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43 |
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| Section 7.11. |
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Preferential Collection of Claims Against Company. |
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43 |
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| ARTICLE VIII |
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| AMENDMENT, SUPPLEMENT AND WAIVER |
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| Section 8.01. |
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Without Consent of Holders. |
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43 |
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| Section 8.02. |
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With Consent of Holders. |
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44 |
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| Section 8.03. |
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Revocation and Effect of Consents. |
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45 |
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| Section 8.04. |
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Notation on or Exchange of Notes. |
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45 |
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| Section 8.05. |
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Trustee To Sign Amendments, etc. |
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45 |
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| ARTICLE IX |
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| SATISFACTION AND DISCHARGE OF INDENTURE; DEFEASANCE |
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| Section 9.01. |
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Satisfaction and Discharge of Liability on Notes; Defeasance. |
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45 |
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| Section 9.02. |
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Conditions to Defeasance. |
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47 |
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| Section 9.03. |
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Deposited Money and U.S. Government Obligations To Be Held in Trust; Other Miscellaneous Provisions. |
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47 |
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| Section 9.04. |
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Reinstatement. |
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48 |
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| Section 9.05. |
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Moneys Held by Paying Agent. |
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48 |
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| Section 9.06. |
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Moneys Held by Trustee. |
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48 |
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| ARTICLE X |
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| GUARANTEES |
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| Section 10.01. |
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Guarantee. |
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48 |
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| Section 10.02. |
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Severability. |
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50 |
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| Section 10.03. |
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Limitation of Liability. |
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50 |
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| Section 10.04. |
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Contribution. |
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50 |
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| Section 10.05. |
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Subrogation. |
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50 |
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| Section 10.06. |
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Reinstatement. |
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50 |
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| Section 10.07. |
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Release of a Guarantor. |
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50 |
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| Section 10.08. |
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Benefits Acknowledged. |
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51 |
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| ARTICLE XI |
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| MISCELLANEOUS |
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| Section 11.01. |
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Notices. |
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51 |
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| Section 11.02. |
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Certificate and Opinion as to Conditions Precedent. |
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52 |
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| Section 11.03. |
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Statements Required in Certificate and Opinion. |
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| Section 11.04. |
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Communications by Holders with Other Holders. |
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53 |
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| Section 11.05. |
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Rules by Trustee and Agents. |
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| Section 11.06. |
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No Personal Liability of Directors, Officers, Employees and Stockholders. |
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| Section 11.07. |
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Governing Law; Waiver of Jury Trial; Jurisdiction. |
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53 |
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| Section 11.08. |
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No Adverse Interpretation of Other Agreements. |
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| Section 11.09. |
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Successors. |
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| Section 11.10. |
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Separability. |
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| Section 11.11. |
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Counterpart Originals. |
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| Section 11.12. |
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Table of Contents, Headings, etc. |
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54 |
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| Section 11.13. |
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Benefits of Indenture. |
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| Section 11.14. |
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Appointment of Agent for Service. |
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iv
EXHIBITS
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| Exhibit A-1 |
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FORM OF 3.000% SENIOR NOTES DUE 2018 |
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| Exhibit A-2 |
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FORM OF 3.750% SENIOR NOTES DUE 2020 |
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| Exhibit B |
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FORMS OF LEGEND AND ASSIGNMENT FOR 144A NOTES AND OTHER SECURITIES THAT ARE RESTRICTED NOTES |
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| Exhibit C |
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FORM OF LEGEND AND ASSIGNMENT FOR REGULATION S NOTE |
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| Exhibit D |
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FORM OF LEGEND FOR GLOBAL NOTE |
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| Exhibit E |
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FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION WITH TRANSFERS PURSUANT TO REGULATION S |
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| Exhibit F |
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FORM OF CERTIFICATE FROM ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR |
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| Exhibit G |
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FORM OF NOTATION OF GUARANTEE |
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| Exhibit H |
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FORM OF SUPPLEMENTAL INDENTURE |
v
INDENTURE, dated as of December 9, 2015, among Mylan N.V., a public limited liability
company (naamloze vennootschap) incorporated and existing under the laws of the Netherlands, as issuer, Mylan Inc., a Pennsylvania corporation, as guarantor, and The Bank of New York Mellon, a New York banking corporation, as trustee.
Each party agrees as follows for the benefit of the other parties and for the equal and ratable benefit of the Holders of the Notes.
ARTICLE I
DEFINITIONS AND
INCORPORATION BY REFERENCE
Section 1.01. Definitions.
“2018 Notes” means the Initial 2018 Notes, the Exchange Notes issued in exchange for the Initial 2018 Notes and the Additional
2018 Notes, if any, issued by the Company pursuant to this Indenture.
“2020 Notes” means the Initial 2020 Notes, the
Exchange Notes issued in exchange for the Initial 2020 Notes and the Additional 2020 Notes, if any, issued by the Company pursuant to this Indenture.
“Additional Interest” has the meaning set forth in the Registration Rights Agreement.
“Affiliate” means, with respect to any specified Person, any other Person directly or indirectly controlling or controlled by
or under direct or indirect common control with such specified Person; provided, however, that the Foundation is not an Affiliate of the Company or any Subsidiary of the Company. For the purposes of this definition, “control” when
used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through ownership of voting securities, by contract or otherwise; and the terms “controlling”
and “controlled” have meanings correlative to the foregoing. No Person (other than the Company or any Subsidiary of the Company) in whom a Receivables Entity makes an Investment in connection with a Qualified Receivables Transaction will
be deemed to be an Affiliate of the Company or any of its Subsidiaries solely by reason of such Investment.
“Agent”
means any Registrar, co-registrar or Paying Agent.
“amend” means amend, modify,
supplement, restate or amend and restate, including successively; and “amending” and “amended” have correlative meanings.
“Attributable Debt” in respect of a Sale Leaseback Transaction means, as at the time of determination, the present value
(discounted at the interest rate implicit in the lease, compounded annually) of the total obligations of the lessee for rental payments during the remaining term of the lease included in such Sale Leaseback Transaction (including any period for
which such lease has been extended); provided, however, that if such Sale Leaseback Transaction results in a Capital Lease Obligation, the amount of Indebtedness represented thereby will be determined in accordance with the definition of
“Capital Lease Obligation.”
“Attributable Receivables Indebtedness” at any time means the principal amount of
Indebtedness which (i) if a Qualified Receivables Transaction is structured as a secured lending agreement, would constitute the principal amount of such Indebtedness or (ii) if a Qualified Receivables Transaction is structured as a
purchase agreement, would be outstanding at such time under the Qualified Receivables Transaction if the same were structured as a secured lending agreement rather than a purchase agreement.
“Bankruptcy Law” means Title 11, United States Code, or any similar U.S. Federal or state law, the Netherlands Bankruptcy Act
(Faillissementswet) or law of any other jurisdiction relating to bankruptcy, insolvency, winding-up, liquidation, reorganization or relief of debtors.
“Below Investment Grade Rating Event” means, with respect to the Notes of a series, the rating on such series of Notes is
lowered in respect of a Change of Control and such series of Notes is rated below an Investment Grade Rating by each of the Rating Agencies on any date from the date of the public notice of an arrangement that could result in a Change of Control
until the end of the 60-day period following public notice of the occurrence of a Change of Control (which period shall be extended until the ratings are announced if, during such 60-day period, the rating of such series of Notes is under publicly
announced consideration for possible downgrade by each of the
Rating Agencies); provided that a Below Investment Grade Rating Event otherwise arising by virtue of a particular reduction in rating shall not be deemed to have occurred in respect of a
particular Change of Control (and thus shall not be deemed a Below Investment Grade Rating Event for purposes of the definition of Change of Control Repurchase Event hereunder) if the Rating Agencies making the reduction in rating to which this
definition would otherwise apply do not announce or publicly confirm or inform the Company in writing at its request that the reduction was the result, in whole or in part, of any event or circumstance comprised of or arising as a result of, or in
respect of, the applicable Change of Control (whether or not the applicable Change of Control shall have occurred at the time of the Below Investment Grade Rating Event). The Company shall request the Rating Agencies to make such confirmation in
connection with any Change of Control and shall promptly certify to the Trustee as to whether or not such confirmation has been received or denied.
“Board of Directors” means the board of directors (raad van bestuur) of the Company or any duly authorized committee
thereof.
“Business Day” means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in the place of payment for a series of Notes are authorized or obligated by law or executive order to close.
“Capital Lease Obligations” means, with respect to any Person, 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 under
GAAP; and, for the purposes of this Indenture, the amount of such obligations at any time shall be the capitalized amount thereof at such time determined in accordance with GAAP.
“Capital Stock” of any Person means any and all shares, interests, participations, rights in or other equivalents (however
designated) of such Person’s capital stock, other equity interests whether now outstanding or issued after the Issue Date, partnership interests (whether general or limited), limited liability company interests, 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, including any Preferred Stock, and any rights (other than debt securities convertible into, or
exchangeable for or valued by reference to, Capital Stock until and unless any such debt security is converted into Capital Stock), warrants or options exchangeable for or convertible into such Capital Stock.
“Change of Control” means the occurrence of any of the following events:
(1) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) other
than the Foundation is or becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a Person shall be deemed to have beneficial ownership of all shares
that such Person has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of more than 50% of the total outstanding Voting Stock of the Company;
(2) the Company consolidates with or merges with or into any Person or sells, assigns, conveys, transfers, leases or otherwise
disposes of all or substantially all of its assets to any Person, or any Person consolidates with or merges into or with the Company, in any such event pursuant to a transaction in which the outstanding Voting Stock of the Company is converted into
or exchanged for cash, securities or other property, other than any such transaction where:
(a) the outstanding Voting
Stock of the Company is changed into or exchanged for Voting Stock of the surviving corporation, and
(b) the holders of
the Voting Stock of the Company immediately prior to such transaction own, directly or indirectly, not less than a majority of the Voting Stock of the Company or the surviving corporation immediately after such transaction and in substantially the
same proportion as before the transaction, or
(3) the Company is liquidated or dissolved or adopts a plan of liquidation
or dissolution other than in a transaction which complies with the provisions described in Section 5.01;
2
provided that any event described by clause (1) of this definition that lasts for
fewer than 60 days shall not constitute a Change of Control if prior to the expiration of such period, the Foundation exercises its right to acquire Capital Stock in the Company such that the event that would otherwise constitute a Change of
Control has ceased to exist.
“Change of Control Repurchase Event” means, with respect to a series of Notes, the
occurrence of a Change of Control together with a Below Investment Grade Rating Event with respect to such series of Notes.
“Commission” means the U.S. Securities and Exchange Commission.
“Commodity Price Protection Agreement” means any forward contract, commodity swap, commodity option or other similar
financial agreement or arrangement relating to, or the value of which is dependent upon, fluctuations in commodity prices.
“Company” means Mylan N.V., a public limited liability company (naamloze vennootschap) incorporated and existing under
the laws of the Netherlands, until a successor replaces it in accordance with the applicable provisions of this Indenture and thereafter means the successor serving hereunder and any and all successors thereto hereunder.
“Company Order” means a written request or order signed in the name of the Company by its chairman of the board, its chief
executive officer or chief financial officer, its president or a vice president, its treasurer, an assistant treasurer, its controller, an assistant controller, its secretary or an assistant secretary, and delivered to the Trustee.
“Comparable Treasury Issue” means the United States Treasury security or securities selected by an Independent Investment
Banker as having an actual or interpolated maturity comparable to the remaining term of the Notes being redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate
debt securities of a comparable maturity to the remaining term of such Notes.
“Comparable Treasury Price” means, with
respect to any Redemption Date:
(1) the average of the Reference Treasury Dealer Quotations provided to the Trustee from
four Reference Treasury Dealers selected by the Company for the Redemption Date, after excluding the highest and lowest such Reference Treasury Dealer Quotations, or
(2) if the Trustee obtains fewer than four Reference Treasury Dealer Quotations, the average of all Reference Treasury Dealer
Quotations for the Redemption Date so obtained.
“Consolidated Net Tangible Assets” means, with respect to the Company,
the total amount of assets (less applicable reserves and other properly deductible items) after deducting (i) all current liabilities (excluding the amount of liabilities which are by their terms extendable or renewable at the option of
the obligor to a date more than 12 months after the date as of which the amount is being determined) and (ii) all goodwill, tradenames, trademarks, patents, unamortized debt discount and expense and other like intangible assets, all as set
forth on the most recent consolidated balance sheet of the Company and its Subsidiaries.
“Corporate Trust Office” means
the office of the Trustee at which at any particular time its corporate trust business in Pittsburgh, Pennsylvania shall be principally administered, which office as of the date of this Indenture is located at 500 Ross Street, 12th Floor,
Pittsburgh, PA 15262, except that with respect to presentation of Notes for payment or for registration of transfer or exchange, such term shall mean the office or agency of the Trustee at which at any particular time its corporate agency business
shall be conducted, which office at the date of this Indenture is located at The Bank of New York Mellon, 111 Sanders Creek, East Syracuse, New York 13057, Attn: Corporate Trust Operations, or, in the case of any of such offices or agency, such
other address as the Trustee may designate from time to time by notice to the Holders and the Company.
“corporation”
includes corporations, associations, companies (including any limited liability company), business trusts and limited partnerships.
3
“Currency Agreement” means one or more of the following agreements which shall
be entered into by one or more financial institutions: foreign exchange contracts, currency swap agreements or other similar agreements or arrangements designed to protect against the fluctuations in currency values.
“Custodian” means any receiver, interim receiver, receiver and manager, trustee, assignee, liquidator, custodian,
curator or similar official under any Bankruptcy Law.
“Default” means any event which is, or after notice or
passage of time or both would be, an Event of Default.
“Depositary” means, with respect to the Notes issued in the form
of one or more Global Notes, The Depository Trust Company or another Person designated as Depositary by the Company, which Person must be a clearing agency registered under the Exchange Act.
“Domestic Subsidiary” means any Subsidiary that is not a Foreign Subsidiary.
“Event of Default” has the meaning set forth in Section 6.01.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, or any successor statute, and the rules and regulations
promulgated by the Commission thereunder.
“Exchange Notes” means, with respect to the Initial Notes, notes issued in
exchange for the Initial Notes pursuant to the terms of the Registration Rights Agreement or, with respect to any Additional Notes, notes issued in exchange for such Additional Notes pursuant to the terms of a registration rights agreement among the
Company and the initial purchasers of such Additional Notes.
“Exchange Offer” has the meaning set forth in the
Registration Rights Agreement.
“Fair Market Value” means, with respect to any asset or property, the sale value that
would be obtained in an arm’s-length free market transaction between an informed and willing seller under no compulsion to sell and an informed and willing buyer under no compulsion to buy less any Taxes
payable as a result of or arising out of the disposition of such asset or property. Fair Market Value shall be determined in good faith by the Company.
“Foreign Subsidiary” means a Subsidiary that is not organized, incorporated or existing under the laws of the United States
of America or any state or territory thereof or the District of Columbia or is a Subsidiary of such Foreign Subsidiary.
“Foundation” means Stichting Preferred Shares Mylan, a foundation (stichting) established and existing under the laws
of the Netherlands.
“GAAP” means generally accepted accounting principles in the United States of America as in effect
from time to time (except with respect to accounting for capital leases, as to which such principle in effect on the Issue Date shall apply), including, without limitation, those set forth in the Financial Accounting Standards Board’s
“Accounting Standards Codification” or in such other statements by such other entity as approved by a significant segment of the accounting profession.
“Governmental Authority” means the government of the United States of America, any other nation or any political subdivision
thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining
to government.
“Guarantee” means any obligation, contingent or otherwise, of any Person directly or indirectly
guaranteeing any Indebtedness of any other Person and any obligation, direct or indirect, contingent or otherwise, of such Person:
(a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness of such other Person
(whether arising by virtue of partnership arrangements, or by agreements to keep-well, to purchase assets, goods, securities or services, to take-or-pay or to maintain financial statement conditions or otherwise); or
(b) entered into for the purpose of assuring in any other manner the obligee against loss in respect thereof (in whole or in
part);
4
provided, however, that the term “Guarantee” shall not include:
(1) endorsements for collection or deposit in the ordinary course of business; or
(2) a contractual commitment by one Person to invest in another Person.
The term “Guarantee” used as a verb has a corresponding meaning. The term “Guarantor” means any Subsidiary of the
Company that Guarantees the Notes under this Indenture.
“Hedging Obligations” of any Person means the obligations
of such Person pursuant to any Interest Rate Agreement, Currency Agreement, Commodity Price Protection Agreement or any other similar agreement or arrangement.
“Holder” means the Person in whose name a Note is registered on the Note register.
“Incur” means issue, assume, Guarantee, incur or otherwise become liable for. The term “Incurrence” when
used as a noun has a correlative meaning.
“Indebtedness” means, with respect to any Person on any date of determination
(without duplication):
(1) the principal in respect of (A) indebtedness of such Person for money borrowed and
(B) indebtedness evidenced by notes, debentures, bonds or other similar instruments for the payment of which such Person is responsible or liable, including, in each case, any premium on such indebtedness to the extent such premium has become
due and payable;
(2) all Capital Lease Obligations of such Person and all Attributable Debt in respect of Sale Leaseback
Transactions entered into by such Person;
(3) all obligations of such Person issued or assumed as the deferred purchase
price of Property, all conditional sale obligations of such Person and all obligations of such Person under any title retention agreement (but excluding any accounts payable or other liability to trade creditors arising in the ordinary course of
business);
(4) all obligations of such Person for the reimbursement of any obligor on any letter of credit, bankers’
acceptance or similar credit transaction (other than obligations with respect to letters of credit securing obligations (other than obligations described in clauses (1) through (3) above) entered into in the ordinary course of business of
such Person to the extent such letters of credit are not drawn upon or, if and to the extent drawn upon, such drawing is reimbursed no later than the 30th day following payment on the letter of credit);
(5) to the extent not otherwise included in this definition, Hedging Obligations of such Person;
(6) all Attributable Receivables Indebtedness;
(7) all obligations of the type referred to in clauses (1) through (6) above of other Persons and all dividends of
other Persons for the payment of which, in either case, such Person is responsible or liable, directly or indirectly, as obligor, guarantor or otherwise, including by means of any Guarantee; and
(8) all obligations of the type referred to in clauses (1) through (7) above of other Persons secured by any Lien on
any property or asset of such Person (whether or not such obligation is assumed by such Person), the amount of such obligation being deemed to be the lesser of the Fair Market Value of such property or assets and the amount of the obligation so
secured.
5
Notwithstanding the foregoing, in connection with the purchase by the Company or any Subsidiary
of the Company of any business, the term “Indebtedness” will exclude indemnification, purchase price adjustment, earn-outs, holdbacks, milestones and contingency payment obligations to which the
seller may become entitled to the extent such payment is determined by a final closing balance sheet or such payment depends on the performance of such business after the closing; provided, however, that, at the time of closing, the
amount of any such payment is not determinable and, to the extent such payment thereafter becomes fixed and determined, the amount is paid within 60 days thereafter.
The amount of Indebtedness of any Person at any date shall be the outstanding balance at such date of all obligations as described above;
provided, however, that in the case of Indebtedness sold at a discount, the amount of such Indebtedness at any time will be the accreted value thereof at such time.
“Indenture” means this Indenture, as amended or supplemented from time to time in accordance with its terms.
“Indenture Obligations” means the obligations of the Company and any other obligor under this Indenture or under the Notes,
including any Guarantor, to pay principal of, premium, if any, and interest when due and payable, and all other amounts due or to become due under or in connection with this Indenture and the Notes and the performance of all other obligations to the
Trustee and the Holders under this Indenture and the Notes, according to the respective terms thereof.
“Independent Investment
Banker” means one of the Reference Treasury Dealers appointed by the Company.
“Initial 2018 Notes” means the
$500,000,000 aggregate principal amount of the 3.000% Senior Notes due 2018 of the Company under this Indenture on the Issue Date.
“Initial 2020 Notes” means the $500,000,000 aggregate principal amount of the 3.750% Senior Notes due 2020 of the Company
under this Indenture on the Issue Date.
“Initial Notes” means, collectively, the Initial 2018 Notes and the Initial 2020
Notes.
“Institutional Accredited Investor” means an institution that is an “accredited investor” as defined in
Rule 501(a)(1), (2), (3) or (7) under the Securities Act, and is not also a QIB.
“interest” means, with respect to the
Notes, interest and Additional Interest.
“Interest Payment Date” means June 15 or December 15 of each year, as
applicable.
“Interest Rate Agreement” means one or more of the following agreements which shall be entered into by one
or more financial institutions: interest rate protection agreements (including, without limitation, interest rate swaps, caps, floors, collars and similar agreements) and/or other types of interest rate hedging agreements from time to time.
“Investment” means, with respect to any Person, directly or indirectly, (i) any advance, loan (including guarantees), or
other extension of credit or capital contribution to (by means of any transfer of cash or other property to others), (ii) any payment for property or services for the account or use of others, (iii) any purchase, acquisition or ownership
by such Person of any Capital Stock, bonds, notes, debentures or other securities issued by any other Person, or (iv) any other item to the extent required to be reflected as an investment on a consolidated balance sheet of such Person prepared
in accordance with GAAP.
“Investment Grade Rating” means (i) with respect to Moody’s, a rating equal to or
higher than Baa3 (or the equivalent), and (ii) with respect to S&P, a rating equal to or higher than BBB- (or the equivalent) (or, in each case, if such Rating Agency ceases to rate the Notes for reasons outside of the Company’s
control, the equivalent investment grade credit rating from any Rating Agency selected by the Company as a replacement Rating Agency).
“Issue Date” means the date on which the Initial Notes are initially issued.
“Lien” means any mortgage, pledge, security interest, encumbrance, lien or charge of any kind (including any conditional sale
or other title retention agreement or lease in the nature thereof).
6
“Maturity Date,” when used with respect to any Note, means the date on which the
principal amount of such Note becomes due and payable as therein or herein provided.
“Moody’s” means Moody’s
Investors Service, Inc. and any successor thereto.
“Mylan Inc. Debt” means any Indebtedness outstanding under the
following:
| |
(1) |
Indenture dated as of December 21, 2012, among Mylan Inc., as issuer, the Company, as guarantor, and The Bank of New York Mellon, as trustee; |
| |
(2) |
First supplemental indenture dated as of February 27, 2015, among Mylan Inc., as issuer, the Company, as guarantor, and The Bank of New York Mellon, as trustee, to the indenture dated as of December 21, 2012;
|
| |
(3) |
Second supplemental indenture dated as of March 12, 2015, among Mylan Inc., as issuer, the Company, as parent, and The Bank of New York Mellon, as trustee, to the indenture dated as of December 21, 2012;
|
| |
(4) |
Indenture dated as of June 25, 2013, among Mylan Inc., the guarantors party thereto and The Bank of New York Mellon, as trustee; |
| |
(5) |
First supplemental indenture dated as of February 27, 2015, among Mylan Inc., as issuer, the Company, as guarantor, and The Bank of New York Mellon, as trustee, to the indenture dated as of June 25, 2013;
|
| |
(6) |
Second supplemental indenture dated as of March 12, 2015, among Mylan Inc., as issuer, the Company, as parent, and The Bank of New York Mellon, as trustee, to the indenture dated as of June 25, 2013;
|
| |
(7) |
Indenture dated as of November 29, 2013, by and between Mylan Inc. and The Bank of New York Mellon, as trustee; |
| |
(8) |
First supplemental indenture dated as of November 29, 2013, by and between Mylan Inc. and The Bank of New York Mellon, as trustee, to the indenture dated as of November 29, 2013; |
| |
(9) |
Second supplemental indenture dated as of February 27, 2015, among Mylan Inc., as issuer, the Company, as guarantor, and The Bank of New York Mellon, as trustee, to the indenture dated as of November 29, 2013;
|
| |
(10) |
Third supplemental indenture dated as of March 12, 2015, among Mylan Inc., as issuer, the Company, as parent, and The Bank of New York Mellon, as trustee, to the indenture dated as of November 29, 2013;
|
| |
(11) |
Revolving Credit Agreement; and |
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(12) |
Term Credit Agreements. |
“Non-U.S. Person” means a Person who is not a U.S.
Person, as defined in Regulation S.
“Notation of Guarantee” means a notation of guarantee substantially in the form
attached as Exhibit G hereto.
“Notes” means, collectively, the 2018 Notes and the 2020 Notes.
“Obligations” means, with respect to any Indebtedness, all obligations for principal, premium, interest, penalties, fees,
indemnifications, reimbursements, and other amounts payable pursuant to the documentation governing such Indebtedness.
“Officer” means the chief executive officer, the president, the chief financial officer or any vice president, the treasurer
or the secretary of the specified Person.
7
“Officer’s Certificate” means a certificate signed by the chairman of the
Board of Directors, the chief executive officer, the chief financial officer, the president or a vice president, the treasurer, an assistant treasurer, the controller, the secretary or an assistant secretary of the Company, and delivered to the
Trustee.
“Offering Memorandum” means the offering memorandum of the Company, dated December 4, 2015, related to the
offering of the Notes and related Guarantees.
“Opinion of Counsel” means a written opinion from legal counsel, who is
acceptable to the Trustee, delivered to the Trustee. The counsel may be an employee of or counsel to the Company or the Trustee.
“Participating Broker-Dealer” has the meaning set forth in the Registration Rights Agreement.
“Permitted Liens” means, with respect to any Person:
(1) pledges or deposits by such Person under worker’s compensation laws, unemployment insurance laws or similar
legislation, or good faith deposits in connection with bids, tenders, contracts (other than for the payment of Indebtedness) or leases to which such Person is a party, or deposits to secure public or statutory obligations of such Person or deposits
of cash or United States government bonds to secure surety or appeal bonds to which such Person is a party, performance bonds or obligations of a like nature or deposits as security for contested taxes or import duties or for the payment of rent, in
each case Incurred in the ordinary course of business;
(2) Liens imposed by law, such as carriers’,
warehousemen’s and mechanics’ Liens, in each case for sums not yet due or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards against such Person with respect to which such Person
shall then be proceeding with an appeal or other proceedings for review and Liens arising solely by virtue of any statutory or common law provision relating to banker’s Liens, rights of setoff or similar rights and remedies as to deposit
accounts or other funds maintained with a creditor depository institution; provided, however, that (A) such deposit account is not a dedicated cash collateral account and is not subject to restrictions against access by the
Company in excess of those set forth by regulations promulgated by the Federal Reserve Board and (B) such deposit account is not intended by the Company or any Subsidiary of the Company to provide collateral to the depository institution;
(3) Liens for taxes, assessments or other governmental charges or claims, in each case not yet subject to penalties for
nonpayment or which are being contested in good faith by appropriate proceedings;
(4) Liens in favor of issuers of
performance and surety bonds or bid bonds or letters of credit issued pursuant to the request of and for the account of such Person in the ordinary course of its business;
(5) minor survey exceptions, minor encumbrances, easements or reservations of, or rights of others for, licenses,
rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions as to the use of real property or Liens incidental to the conduct of the business of such Person or to the ownership of
its properties which were not Incurred in connection with Indebtedness and which do not in the aggregate materially adversely affect the value of such properties or materially impair their use in the operation of the business of such Person;
(6) Liens securing Indebtedness Incurred after the Issue Date in respect of Purchase Money Indebtedness and refinancing
Indebtedness in respect thereof;
(7) Liens existing on the Issue Date;
8
(8) Liens on property or shares of Capital Stock of another Person at the time
such other Person becomes a Subsidiary of such Person; provided, however, that the Liens may not extend to any other property owned by such Person or any of its Subsidiaries (other than assets and property affixed or appurtenant
thereto);
(9) Liens on property at the time such Person or any of its Subsidiaries acquires the property, including any
acquisition by means of a merger or consolidation with or into such Person or a Subsidiary of such Person; provided, however, that the Liens may not extend to any other property owned by such Person or any of its Subsidiaries (other
than assets and property affixed or appurtenant thereto);
(10) Liens securing Indebtedness or other obligations of a
Subsidiary of such Person owing to such Person or a Wholly Owned Subsidiary of such Person;
(11) Liens securing Hedging
Obligations so long as such Hedging Obligations are not entered into for speculative purposes, it being understood that any Hedging Obligations entered into in connection with the issuance of Company’s outstanding or future Indebtedness shall
not be considered speculative;
(12) any Lien on accounts receivable and related assets of the types specified in the
definition of “Qualified Receivables Transaction” incurred in connection with a Qualified Receivables Transaction;
(13) (a) Liens in favor of the Company or any Guarantor and (b) Liens on the property of any Subsidiary of the Company in
favor of any other Subsidiary of the Company;
(14) leases, subleases, licenses or sublicenses granted to third parties
entered into in the ordinary course of business which do not materially interfere with the conduct of the business of the Company and the Subsidiaries and which do not secure any Indebtedness;
(15) Liens securing judgments, decrees, orders or awards for the payment of money not constituting an Event of Default in
respect of which the Company shall in good faith be prosecuting an appeal or proceedings for review, which appeal or proceedings shall not have been finally terminated, or in respect of which the period within which such appeal or proceedings may be
initiated shall not have expired;
(16) with respect to the Notes of any series, Liens created for the benefit of (or to
secure) the Notes of such series (or the Guarantees);
(17) 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;
(18) Liens arising out of conditional sale, title retention, consignment or similar arrangements for sale of goods entered into
by the Company or any Subsidiary of the Company in the ordinary course of business;
(19) Liens in favor of customs and
revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods in the ordinary course of business;
(20) Liens (i) of a collection bank arising under Section 4-210 of the New York Uniform Commercial Code on items in
the course of collection and (ii) attaching to commodity trading accounts or other commodities brokerage accounts incurred in the ordinary course of business, including Liens encumbering reasonable customary initial deposits and margin
deposits;
(21) Liens, pledges or deposits made in the ordinary course of business to secure liability to insurance
carriers;
(22) grants of software and other technology licenses in the ordinary course of business;
(23) Liens on equipment of the Company or any Subsidiary of the Company granted in the ordinary course of business to the
Company’s or such Subsidiary’s supplier at which such equipment is located;
9
(24) Liens arising from Uniform Commercial Code financing statement filings
regarding operating leases or consignments entered into by the Company and its Subsidiaries in the ordinary course of business;
(25) Liens incurred to secure cash management services or to implement cash pooling or sweep arrangements to permit
satisfaction of overdraft or similar obligations in the ordinary course of business;
(26) Liens arising by virtue of any
statutory or common law provisions relating to banker’s liens, rights of setoff or similar rights and remedies as to deposit accounts or other funds maintained with a depository or financial institution or as to purchase orders and other
agreements entered into with customers in the ordinary course of business;
(27) any encumbrance or restriction (including
put and call arrangements) with respect to Capital Stock of any joint venture or similar arrangement pursuant to any joint venture or similar agreement;
(28) Liens on securities that are the subject of repurchase agreements;
(29) Liens securing insurance premiums financing arrangements; provided that such Liens are limited to the applicable
unearned insurance premiums;
(30) Liens arising solely from precautionary Uniform Commercial Code financing statements or
similar filings;
(31) ground leases in respect of real property on which facilities owned or leased by the Company or any
of its Subsidiaries are located and other Liens affecting the interest of any landlord (and any underlying landlord) of any real property leased by the Company or any Subsidiary of the Company;
(32) Liens to secure any Refinancing (or successive Refinancings) as a whole, or in part, of any Indebtedness secured by any
Lien referred to in the foregoing clauses (7), (8), (9), (10), (11), (12) or (14); provided, however, that:
(A) such new Lien shall be limited to all or part of the same property (plus improvements on such property) and assets that
secured or, under the written agreements pursuant to which the original Lien arose, could secure the original Lien (plus improvements and accessions to, such property or proceeds or distributions thereof); and
(B) the Indebtedness secured by such Lien at such time is not increased to any amount greater than the sum of (i) the
outstanding principal amount or, if greater, committed amount of the Indebtedness described under the foregoing clauses (7), (8), (9), (10), (11), (12) or (14) at the time the original Lien became a Permitted Lien and (ii) an amount
necessary to pay any fees and expenses, including premiums, related to such refinancing, refunding, extension, renewal or replacement;
(33) Liens incurred in the ordinary course of business by American Triumvirate Insurance Company, a Vermont corporation, or any
successor thereto, so long as such Subsidiary is maintained as a special purpose self-insurance Subsidiary of the Company;
(34) Liens on equity interests of any Person formed for the purposes of engaging in activities in the renewable energy sector
(including refined coal) that qualify for federal tax benefits allocable to the Company and its Subsidiaries in which the Company or any Subsidiary of the Company has made an investment and Liens on the rights of the Company and its Subsidiaries
under any agreement relating to any such investment;
(35) any Lien arising under Article 24 or 26 of the general terms and
conditions (Algemene Bank Voorwaarden) of any member of the Dutch Bankers’ Association (Nederlandse Vereniging van Banken) or any similar term applied by a financial institution in the Netherlands pursuant to its general terms and
conditions;
(36) any netting or set-off arrangement entered into by the Company or any Subsidiary of the Company in the
ordinary course of its banking arrangements for the purpose of netting debt and credit balances;
(37) any Lien, including
any netting or set-off, arising by operation of law as a result of the existence of a fiscal unity (fiscale eenheid) for Dutch tax purposes of which any Subsidiary of the Company is or has been a member;
10
(38) Liens on cash and cash equivalents deposited as cash collateral on letters
of credit as contemplated by the Revolving Credit Agreement;
(39) Liens on “earnest money” or similar deposits
or other cash advances in connection with acquisitions or consisting of an agreement to dispose of any property in a disposition, including customary rights and restrictions contained in such agreements; and
(40) other Liens securing Indebtedness, in an aggregate principal amount for the Company and its Subsidiaries together with the
amount of Attributable Debt incurred in connection with Sale Leaseback Transactions, not exceeding at the time such Lien is created or assumed the greater of $500 million or 15% of Consolidated Net Tangible Assets, at any one time outstanding.
For purposes of determining compliance with this definition, (A) Permitted Liens need not be incurred solely by reference to one category
of Permitted Liens described above but are permitted to be incurred in part under any combination thereof and (B) in the event that a Lien (or any portion thereof) meets the criteria of one or more of the categories of Permitted Liens described
above, the Company may, in its sole discretion, classify or reclassify such item of Permitted Liens (or any portion thereof) in any manner that complies with this definition and the Company may divide and classify a Lien in more than one of the
types of Permitted Liens in one of the above clauses.
“Person” means any individual, corporation, company (including any
limited liability company), association, partnership, joint venture, trust, unincorporated organization, government or any agency or political subdivision thereof or any other entity.
“Physical Notes” means certificated 2018 Notes and 2020 Notes (other than Global Notes) in registered form in substantially
the form set forth in Exhibit A-1 and Exhibit A-2, respectively.
“Place of Payment”, when used with
respect to the Notes, means the place or places where the principal of (and premium, if any) and interest on the Notes are payable as specified as contemplated by Section 4.02.
“Preferred Stock,” as applied to the Capital Stock of any Person, means Capital Stock of any class or classes (however
designated) which is preferred as to the payment of dividends or distributions, or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such Person, over shares of Capital Stock of any other class of such
Person.
“Private Placement Legend” means the legend initially set forth on the Rule 144A Notes and other Notes that are
Restricted Notes in the form set forth in Exhibit B.
“Property” means any right or interest in or to property of
any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, including, without limitation, Capital Stock.
“Purchase Money Indebtedness” means Indebtedness Incurred to finance the acquisition, development, construction or lease by
the Company or a Domestic Subsidiary of the Company of Property, including additions and improvements thereto, where the maturity of such Indebtedness does not exceed the anticipated useful life of the Property being financed; provided,
however, that such Indebtedness is Incurred within 270 days after the completion of the acquisition, development, construction or lease of such Property by the Company or such Domestic Subsidiary.
“Qualified Institutional Buyer” or “QIB” shall have the meaning specified in Rule 144A promulgated under the
Securities Act.
“Qualified Receivables Transaction” means any transaction or series of transactions that may be entered
into by the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries may sell, convey or otherwise transfer to:
(1) a Receivables Entity (in the case of a transfer by the Company or any of its Subsidiaries) or
(2) any other Person (in the case of a transfer by a Receivables Entity),
11
or may grant a security interest in, any accounts receivable (whether now existing or arising in the
future) of the Company or any of its Subsidiaries, and any assets related thereto, including all collateral securing such accounts receivable, all contracts and all Guarantees or other obligations in respect of such accounts receivable, proceeds of
such accounts receivable and other assets which are customarily transferred or in respect of which security interests are customarily granted in connection with asset securitization transactions involving accounts receivable; provided,
however, that the financing terms, covenants, termination events and other provisions thereof shall be market terms (as determined in good faith by the chief financial officer of the Company).
“Rating Agencies” means:
(1) S&P;
(2) Moody’s; or
(3) if S&P or Moody’s or both shall not make a rating of the Notes publicly available, a “nationally recognized
statistical rating organization” within the meaning of Section 3(a)(62) of the Exchange Act, selected by the Company, which shall be substituted for S&P or Moody’s or both, as the case may be.
“Receivables Entity” means (a) a Wholly Owned Subsidiary of the Company that is designated by the Board of Directors (as
provided below) as a Receivables Entity or (b) another Person engaging in a Qualified Receivables Transaction with the Company, which Person engages in the business of the financing of accounts receivable, and in either of clause (a) or
(b):
(1) no portion of the Indebtedness or any other obligations (contingent or otherwise) of such entity:
(A) is Guaranteed by the Company or any Subsidiary of the Company (excluding Guarantees of obligations (other than the
principal of, and interest on, Indebtedness) pursuant to Standard Securitization Undertakings),
(B) is recourse to or
obligates the Company or any Subsidiary of the Company in any way (other than pursuant to Standard Securitization Undertakings), or
(C) subjects any property or asset of the Company or any Subsidiary of the Company, directly or indirectly, contingently or
otherwise, to the satisfaction thereof (other than pursuant to Standard Securitization Undertakings);
(2) the entity is
not an Affiliate of the Company or is an entity with which neither the Company nor any Subsidiary of the Company has any material contract, agreement, arrangement or understanding other than on terms that the Company reasonably believes to be no
less favorable to the Company or such Subsidiary than those that might be obtained at the time from Persons that are not Affiliates of the Company; and
(3) is an entity to which neither the Company nor any Subsidiary of the Company 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 shall be evidenced to the Trustee by filing with the Trustee a certified copy of the resolution of the Board of Directors giving effect to such designation and an Officer’s Certificate certifying that such designation
complied with the foregoing conditions.
“Redemption Date,” when used with respect to any Note to be redeemed pursuant to
Article III of this Indenture, means the date fixed for such redemption pursuant to the terms of such Article III.
“Redemption
Price,” when used with respect to any Note to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture.
“Reference Treasury Dealer” means (1) to the extent such entity is a primary United States government securities dealer,
Goldman, Sachs & Co., Deutsche Bank Securities Inc., Mitsubishi UFJ Securities (USA), Inc., ING Financial Markets LLC, PNC Capital Markets LLC and DNB Markets, Inc. (or their affiliates and their
12
respective successors) to the extent such entity is a primary United States government securities dealer as of the Issue Date, provided that if any of these Reference Treasury Dealers
resigns or shall cease to be a primary United States government securities dealer, then the Company shall substitute another primary United States government securities dealer and (2) any other primary United States government securities dealer
selected by the Company.
“Reference Treasury Dealer Quotations” means, with respect to a Reference Treasury Dealer and
any Redemption Date, the average, as determined by such Reference Treasury Dealer, of the bid and asked prices for the Comparable Treasury Issue, expressed in each case as a percentage of its principal amount, quoted in writing to the Trustee by
such Reference Treasury Dealer at approximately 3:30 p.m., New York City time, on the third Business Day preceding such Redemption Date.
“Refinance” means, in respect of any Indebtedness, to refinance, extend, renew, refund, repay, prepay, purchase, redeem,
defease or retire, or to issue other Indebtedness in exchange or replacement for, such Indebtedness. “Refinanced” and “Refinancing” have correlative meanings.
“Registration Rights Agreement” means the Registration Rights Agreement related to the Initial Notes, dated as of the Issue
Date, among the Company, the Guarantors and the initial purchasers named therein and, with respect to any Additional Notes, one or more registration rights agreements between the Company and the other parties thereto, relating to rights given by the
Company to the purchasers of Additional Notes to register such Additional Notes under the Securities Act.
“Regulation D”
means Regulation D promulgated under the Securities Act.
“Regulation S” means Regulation S promulgated under the
Securities Act.
“Responsible Officer” means, when used with respect to the Trustee, any officer of the Trustee within
the Corporate Trust Division Corporate Finance Unit (or any successor unit) of the Trustee located at the Corporate Trust Office who has direct responsibility for the administration of this Indenture and, for the purposes of Section 7.01(c)(2)
and the second sentence of Section 7.05 shall also mean any other officer of the Trustee to whom any corporate trust matter is referred because of such officer’s knowledge of and familiarity with the particular subject.
“Restricted Note” has the same meaning as “Restricted Security” set forth in Rule 144(a)(3) promulgated under the
Securities Act; provided that the Trustee shall be entitled to request and conclusively rely upon an Opinion of Counsel with respect to whether any Note is a Restricted Note.
“Revolving Credit Agreement” means the Revolving Credit Agreement dated as of December 19, 2014, among Mylan Inc., as
borrower, the Company, as guarantor, the lenders party thereto, and Bank of America, N.A., as administrative agent, as amended by Amendment No. 1 to Revolving Credit Agreement dated as of May 1, 2015, and as further amended by Amendment
No. 2 to Revolving Credit Agreement dated as of October 28, 2015, in whole or in part, in one or more instances, as such agreement may be amended, renewed, extended, substituted, refinanced, restructured, replaced (whether or not upon
termination, and whether with the original lenders or otherwise), supplemented or otherwise modified from time to time (including, in each case, by means of one or more credit agreements, note purchase agreements or sales of debt securities to
institutional investors whether with the original agents and lenders or otherwise and including, without limitation, any successive renewals, extensions, substitutions, refinancings, restructurings, replacements, supplementations or other
modifications of the foregoing).
“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 Ratings Group, and any successor thereto.
“Sale Leaseback Transaction” means the leasing by the Company or any Domestic Subsidiary of the Company of any property,
whether owned on the Issue Date or acquired after the Issue Date (except for temporary leases for a term, including any renewal term, of up to three years and except for leases between the Company and any Domestic Subsidiary of the Company or
between Domestic Subsidiaries of the Company), which property has been or is to be sold or transferred by the Company or such Domestic Subsidiary to any party with the intention of taking back a lease of such property.
13
“Securities Act” means the Securities Act of 1933, as amended, or any successor
statute, and the rules and regulations promulgated by the Commission thereunder.
“series” refers to the 2018 Notes or
the 2020 Notes, each as a separate series of Notes under this Indenture.
“Significant Subsidiary” means any Subsidiary
of the Company that would be a “significant subsidiary” of the Company within the meaning of Rule 1-02 under Regulation S-X promulgated by the Commission, as such Regulation is in effect on the Issue Date.
“Standard Securitization Undertakings” means representations, warranties, covenants and indemnities entered into by the
Company or any Subsidiary of the Company that, taken as a whole, are customary in an accounts receivable transaction.
“Stated
Maturity” means, when used with respect to any Indebtedness or any installment of interest thereon, the dates specified in such Indebtedness as the fixed date on which the principal of such Indebtedness or such installment of interest, as
the case may be, is due and payable.
“Subsidiary” means, with respect to any specified Person:
(1) any corporation, limited liability company, association or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of any contingency and after giving effect to any voting agreement or stockholders’ agreement that effectively transfers voting power) to vote in the election of
directors, managers or trustees of the corporation, association or other business entity is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person (or a combination thereof);
and
(2) any partnership (a) the sole general partner or the managing general partner of which is such Person or a
Subsidiary of such Person or (b) the only general partners of which are that Person or one or more Subsidiaries of that Person (or any combination thereof);
provided that the Foundation is not a Subsidiary of the Company.
“Supplemental Indenture” means a supplemental indenture substantially in the form attached as Exhibit H hereto.
“TIA” means the Trust Indenture Act of 1939 as amended (15 U.S. Code §§
77aaa-77bbbb).
“Term Credit Agreements” means (i) the Term Credit Agreement
dated December 19, 2014, among Mylan Inc., as borrower, the Company, as guarantor, the lenders party thereto and Bank of America, as administrative agent, as amended by Amendment No. 1 to Term Credit Agreement dated May 1, 2015 and as
further amended by Amendment No. 2 to Term Credit Agreement dated October 28, 2015, and (ii) the Term Credit Agreement dated July 15, 2015, among Mylan Inc., as borrower, the Company, as guarantor, the lenders party thereto, and
PNC Bank National Association, as administrative agent, as amended by Amendment No. 1 to Term Credit Agreement dated October 28, 2015, in each case, in whole or in part, in one or more instances, as such agreements may be amended, renewed,
extended, substituted, refinanced, restructured, replaced (whether or not upon termination, and whether with the original lenders or otherwise), supplemented or otherwise modified from time to time (including, in each case, by means of one or more
credit agreements, note purchase agreements or sales of debt securities to institutional investors whether with the original agents and lenders or otherwise and including, without limitation, any successive renewals, extensions, substitutions,
refinancings, restructurings, replacements, supplementations or other modifications of the foregoing).
“Treasury Rate”
means, with respect to any Redemption Date, the rate per annum equal to the semi-annual equivalent yield to maturity or interpolated (on a day count basis) of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date.
14
“Triggering Indebtedness” means (i) Indebtedness outstanding under the
Revolving Credit Agreement, (ii) Indebtedness outstanding under the Term Credit Agreements or (iii) any other Indebtedness of the Company or any Subsidiary of the Company represented by bonds, debentures, notes or other securities, in each
case, that has an aggregate principal amount or committed amount of at least $350.0 million; provided that, in the case of clauses (i) through (iii) above, in no event shall Triggering Indebtedness include Indebtedness Incurred by a
Foreign Subsidiary of the Company that does not directly or indirectly Guarantee, become an obligor under or otherwise provide direct credit support for any Indebtedness of the Company or any Subsidiary of the Company.
“Trustee” means The Bank of New York Mellon, a New York banking corporation, until a successor replaces it in accordance with
the applicable provisions of this Indenture and thereafter means the successor serving hereunder.
“U.S. Government
Obligations” means securities that are (i) direct obligations of the United States for the payment of which its full faith and credit is pledged or (ii) obligations of a person controlled or supervised by and acting as an agency
or an instrumentality of the United States the timely payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States, that, in either case, are not callable or redeemable at the action of the issuer
thereof, and shall also include a depositary receipt issued by a bank or trust company as custodian with respect to any such U.S. Government Obligation or a specific payment of interest on or principal of any such U.S. Government Obligation held by
such custodian for the account of the holder of a depositary receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any
amount received by the custodian in respect of the U.S. Government Obligation or the specific payment of interest on or principal of the U.S. Government Obligation evidenced by such depositary receipt.
“U.S. Person” means a U.S. Person as defined in Rule 902(k) promulgated under the Securities Act.
“Voting Stock” of a Person means Capital Stock of such Person of the class or classes pursuant to which the holders thereof
have the general voting power under ordinary circumstances to elect at least a majority of the board of directors, managers or trustees of such Person (irrespective of whether or not at the time Capital Stock of any other class or classes shall have
or might have voting power by reason of the happening of any contingency).
“Wholly Owned Subsidiary” means a Subsidiary
of the Company of which the Company owns all of the Capital Stock, directly or indirectly, other than directors’ qualifying shares, of such Subsidiary.
Section 1.02. Other Definitions.
|
|
|
| Term |
|
Defined
in
Section |
| “2018 Regulation S Global Notes” |
|
2.16 |
| “2020 Regulation S Global Notes” |
|
2.16 |
| “2018 Regulation S Notes” |
|
2.02 |
| “2020 Regulation S Notes” |
|
2.02 |
| “2018 Rule 144A Global Notes” |
|
2.16 |
| “2020 Rule 144A Global Notes” |
|
2.16 |
| “2018 Rule 144A Notes” |
|
2.02 |
| “2020 Rule 144A Notes” |
|
2.02 |
| “Additional Amounts” |
|
4.13 |
| “Additional Notes” |
|
2.01 |
| “Additional 2018 Notes” |
|
2.01 |
| “Additional 2020 Notes” |
|
2.01 |
| “Agent Members” |
|
2.16 |
| “Change of Control Offer” |
|
4.08 |
| “Change of Control Purchase Date” |
|
4.08 |
15
|
|
|
| Term |
|
Defined
in
Section |
| “Change of Control Purchase Price” |
|
4.08 |
| “Code” |
|
4.13 |
| “Covenant Defeasance” |
|
9.01 |
| “CUSIP” |
|
2.14 |
| “Event of Default” |
|
6.01 |
| “Global Notes” |
|
2.16 |
| “Initial Lien” |
|
4.07 |
| “Legal Defeasance” |
|
9.01 |
| “Paying Agent” |
|
2.04 |
| “Payor” |
|
4.13 |
| “Registrar” |
|
2.04 |
| “Regulation S Global Notes” |
|
2.16 |
| “Regulation S Notes” |
|
2.02 |
| “Relevant Jurisdiction” |
|
4.13 |
| “Rule 144A Global Note” |
|
2.16 |
| “Rule 144A Notes” |
|
2.02 |
| “Successor Company” |
|
5.01 |
| “Taxes” |
|
4.13 |
Section 1.03. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it herein, whether defined expressly or by reference;
(2) unless otherwise specified herein, all accounting terms used herein shall be interpreted, all accounting determinations
hereunder shall be made, and all financial statements required to be delivered hereunder shall be prepared in accordance with GAAP;
(3) “or” is not exclusive;
(4) words in the singular include the plural, and in the plural include the singular;
(5) “will” shall be interpreted to express a command;
(6) words used herein implying any gender shall apply to both genders;
(7) “herein,” “hereof,” “hereunder” and other words of similar import refer to this Indenture as
a whole and not to any particular Article, Section or other subsection;
(8) “$,” “U.S. Dollars” and
“United States Dollars” each refer to United States dollars, or such other money of the United States that at the time of payment is legal tender for payment of public and private debts;
(9) whenever in this Indenture there is mentioned, in any context, principal, interest or any other amount payable under or
with respect to any Note, such mention shall be deemed to include mention of the payment of Additional Interest to the extent that, in such context, Additional Interest is, was or would be payable in respect thereof;
(10) references to sections of or rules under the Securities Act will be deemed to include substitute, replacement of
successor sections or rules adopted by the Commission from time to time; and
(11) references to Sections, Articles or
Exhibits are references to Sections, Articles or Exhibits of or to this Indenture unless context otherwise requires.
16
Section 1.04. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the portion of such provision required to be incorporated herein in order for this
Indenture to be qualified under the TIA is incorporated by reference in and made a part of this Indenture. The following TIA terms used in this Indenture have the following meanings:
“indenture securities” means the Notes.
“indenture securityholder” means a Holder.
“indenture to be qualified” means this Indenture.
“indenture trustee” or “institutional trustee” means the Trustee.
“obligor on this indenture securities” means the Company or any other obligor on the Notes.
All other terms used in this Indenture (other than those defined herein) that are defined by the TIA, defined in the TIA by reference to
another statute or defined by Commission rule have the meanings therein assigned to them.
ARTICLE II
THE NOTES
Section 2.01.
Amount of Notes.
The Trustee shall initially authenticate the Initial Notes for original issue on the Issue Date upon a written order
of the Company. The Trustee shall authenticate additional 2018 Notes (“Additional 2018 Notes”) and additional 2020 Notes (“Additional 2020 Notes” and, together with the Additional 2018 Notes, the “Additional
Notes”) thereafter in unlimited aggregate principal amount (so long as permitted by the terms of this Indenture) for original issue upon a written order of the Company in the form of a Company Order in aggregate principal amount as
specified in such order (other than as provided in Section 2.08). Each such written order shall specify the amount of Additional Notes to be authenticated and the date on which the Additional Notes are to be authenticated.
Notwithstanding anything else in this Indenture to the contrary, at the Company’s option, Additional Notes may be issued with the same
CUSIP number as the Initial Notes and without the Private Placement Legend, provided that the Company has furnished an Opinion of Counsel to the Trustee confirming such issuance would not conflict with federal and state securities laws and
the rules and regulations of the Commission. The Additional Notes of any series will have substantially the same terms as the Initial Notes of such series in all respects and will be treated as a single class for all purposes under this Indenture,
including, without limitation, waivers, amendments, redemptions and offers to purchase; provided that any Additional Notes that have the same CUSIP, ISIN or other identifying number as the outstanding notes of a series must be fungible with
the outstanding notes of that series for U.S. federal income tax purposes.
Section 2.02. Form and Dating.
The 2018 Notes and the Trustee’s certificate of authentication with respect thereto shall be substantially in the form set forth in
Exhibit A-1, which is incorporated in and forms a part of this Indenture. The 2020 Notes and the Trustee’s certificate of authentication with respect thereto shall be substantially in the form set forth in Exhibit A-2, which
is incorporated in and forms a part of this Indenture. The Notes may have notations, legends or endorsements required by law, rule or usage to which the Company is subject. Without limiting the generality of the foregoing, the 2018 Notes offered and
sold to Qualified Institutional Buyers in reliance on Rule 144A (“2018 Rule 144A Notes”) and the 2020 Notes offered and sold to Qualified Institutional Buyers in reliance on Rule 144A (“2020 Rule 144A
Notes” and, together with the 2018 Rule 144A Notes, the “Rule 144A Notes”) shall bear the Private Placement Legend and include the form of assignment set forth in Exhibit B and the 2018 Notes offered and sold in
offshore transactions in reliance on Regulation S (“2018 Regulation S Notes”) and the 2020 Notes offered and sold in offshore transactions in reliance on Regulation S (“2020 Regulation S Notes” and, together with
the 2018 Regulation S Notes, the “Regulation S Notes”) shall bear the legend and include the form of assignment set forth in Exhibit C. Each Note shall be dated the date of its authentication.
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The terms and provisions contained in the Notes shall constitute, and are expressly made, a part
of this Indenture and, to the extent applicable, the Company, the Guarantors and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and agree 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 control and be binding.
The Notes may be presented for registration of transfer and exchange at the offices of the Registrar.
Section 2.03. Execution and Authentication.
The Notes shall be executed on behalf of the Company by its Chairman of the Board, Chief Executive Officer, Chief Financial Officer, President
or any Vice President. The signature of any of these officers on the Notes may be manual or facsimile.
If an Officer whose signature is
on a Note was an Officer at the time of such execution but no longer holds that office at the time the Trustee authenticates the Note, the Note shall be valid nevertheless.
No Note shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication substantially in the form provided for herein executed by the Trustee by manual signature, and such certificate upon any Note shall be conclusive evidence, and the only evidence, that such Note has been duly
authenticated and delivered hereunder. Notwithstanding the foregoing, if any Note shall have been authenticated and delivered hereunder but never issued and sold by the Company, and the Company shall deliver such Note to the Trustee for cancellation
as provided in Section 2.12, for all purposes of this Indenture such Note shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture.
The Notes shall be issuable only in fully registered form without coupons in denominations of $2,000 and any integral multiple of $1,000 in
excess thereof.
Section 2.04. Registrar and Paying Agent.
The Company shall maintain an office or agency where Notes may be presented for registration of transfer or for exchange (the
“Registrar”), an office or agency where Notes may be presented for payment (the “Paying Agent”) and an office or agency where notices and demands to or upon the Company, if any, in respect of the Notes and this
Indenture may be served. The Registrar shall keep a register of the Notes and of their transfer and exchange. The Company may have one or more additional Paying Agents. The term “Paying Agent” includes any additional Paying Agent.
The Company shall enter into an appropriate agency agreement, which shall incorporate the provisions of the TIA, with any Agent that is not a
party to this Indenture. The agreement shall implement the provisions of this Indenture that relate to such Agent. The Company shall notify the Trustee of the name and address of any such Agent. If the Company fails to maintain a Registrar or Paying
Agent, or fails to give the foregoing notice, the Trustee shall act as such and shall be entitled to appropriate compensation in accordance with Section 7.06.
The Company initially appoints the Trustee as Registrar, Paying Agent and Agent for service of notices and demands in connection with the
Notes and this Indenture, and the Corporate Trust Office of the Trustee as the office or agency of the Company for such purposes, and the Company may change the Paying Agent without prior notice to the Holders. The Company or any of its Subsidiaries
may act as Paying Agent.
Section 2.05. Paying Agent To Hold Money in Trust.
Each Paying Agent shall hold in trust for the benefit of the Holders or the Trustee all money held by the Paying Agent for the payment of
principal of, premium, if any, or interest on the Notes (whether such money has been paid to it by the Company or any other obligor on the Notes), and the Company and the Paying Agent shall notify the Trustee of any default by the Company (or any
other obligor on the Notes) in making any such payment. Money held in trust by the Paying Agent need not be segregated except as required by law and in no event shall the
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Paying Agent be liable for any interest on any money received by it hereunder; provided that if the Company or an Affiliate thereof acts as Paying Agent, it shall segregate the money held
by it as Paying Agent and hold such money in a separate trust fund. The Company at any time may require the Paying Agent to pay all money held by it to the Trustee and account for any funds disbursed, and the Trustee may at any time during the
continuance of any Event of Default specified in Section 6.01(1) or (2), upon written request to the Paying Agent, require the Paying Agent to pay forthwith all money so held by it to the Trustee and to account for any funds disbursed. Upon
making such payment, the Paying Agent shall have no further liability for the money delivered to the Trustee.
Section 2.06.
Holder Lists.
The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the
names and addresses of the Holders of each series of Notes. If the Trustee is not the Registrar, the Company shall furnish to the Trustee at least five Business Days before each Interest Payment Date, and at such other times as the Trustee may
request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of the Holders; provided that, as long as the Trustee is the Registrar, no such list need be furnished.
Section 2.07. Transfer and Exchange.
Subject to Sections 2.16 and 2.17, when Notes are presented to the Registrar with a request from the Holder of such Notes to register a
transfer or to exchange them for an equal principal amount of Notes of other authorized denominations of the same series, the Registrar shall register the transfer as requested. Every Note presented or surrendered for registration of transfer or
exchange shall be duly endorsed or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Registrar, duly executed by the Holder thereof or its attorney duly authorized in writing. To permit registrations of
transfers and exchanges, the Company shall issue and execute, and the Trustee shall authenticate, new Notes evidencing such transfer or exchange at the Registrar’s request. No service charge shall be made to the Holder for any registration of
transfer or exchange. The Company may require from the Holder payment of a sum sufficient to cover any transfer taxes or other governmental charge that may be imposed in relation to a transfer or exchange, but this provision shall not apply to any
exchange pursuant to Section 2.11, 3.06 or 8.04 (in which events the Company shall be responsible for the payment of such taxes). The Registrar shall not be required to exchange or register a transfer of any Note of any series for a period of
15 days immediately preceding the redemption of Notes of such series, except the unredeemed portion of any Note being redeemed in part.
Any Holder of a Global Note shall, by acceptance of such Global Note, agree that transfers of the beneficial interests in such Global Note may
be effected only through a book entry system maintained by the Holder of such Global Note (or its agent), and that ownership of a beneficial interest in the Global Note shall be required to be reflected in a book entry system.
Section 2.08. Replacement Notes.
If a mutilated Note of any series is surrendered to the Registrar or the Trustee, or if the Holder of a Note of any series claims that the Note
has been lost, destroyed or wrongfully taken, the Company shall issue and the Trustee shall authenticate a replacement Note of such series if the Holder of such Note furnishes to the Company and the Trustee evidence reasonably acceptable to them of
the ownership and the destruction, loss or theft of such Note and if the requirements of Section 8-405 of the New York Uniform Commercial Code as in effect on the date of this Indenture are met. If required by the Trustee or the Company, an
indemnity bond shall be posted, sufficient in the judgment of all to protect the Company, the Trustee or any Paying Agent from any loss that any of them may suffer if such Note is replaced. The Company may charge such Holder for the Company’s
reasonable out-of-pocket expenses in replacing such Note and the Trustee may charge the Company for the Trustee’s expenses (including, without limitation, attorneys’ fees and disbursements) in replacing such Note. Every replacement Note
shall constitute a contractual obligation of the Company.
Section 2.09. Outstanding Notes.
The Notes outstanding at any time are all Notes that have been authenticated by the Trustee except for (a) those canceled by it,
(b) those delivered to it for cancellation, (c) to the extent set forth in Sections 9.01 and 9.02, on or after the date on which the conditions set forth in Section 9.01 or 9.02 have been satisfied, those Notes theretofore
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authenticated and delivered by the Trustee hereunder and (d) those described in this Section 2.09 as not outstanding. Subject to Section 2.10, a Note does not cease to be
outstanding because the Company or one of its Affiliates holds the Note.
If a Note is replaced pursuant to Section 2.08, it ceases
to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Note is held by a bona fide purchaser in whose hands such Note is a legal, valid and binding obligation of the Company.
If the Paying Agent holds, in its capacity as such, on any Maturity Date, money sufficient to pay all accrued interest and principal with
respect to the Notes payable on that date and is not prohibited from paying such money to the Holders thereof pursuant to the terms of this Indenture, then on and after that date such Notes cease to be outstanding and interest on them ceases to
accrue.
Section 2.10. Treasury Notes.
In determining whether the Holders of the required principal amount of Notes of a series have concurred in any declaration of acceleration or
notice of default or direction, waiver or consent or any amendment, modification or other change to this Indenture, Notes owned by the Company or any other Affiliate of the Company shall be disregarded as though they were not outstanding, except
that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent or any amendment, modification or other change to this Indenture, only Notes as to which a Responsible Officer of the
Trustee has actually received an Officer’s Certificate stating that such Notes are so owned shall be so disregarded. Notes so owned which have been pledged in good faith shall not be disregarded if the pledgee established to the satisfaction of
the Trustee the pledgee’s right so to act with respect to the Notes and that the pledgee is not the Company, any other obligor on the Notes or any of their respective Affiliates.
Section 2.11. Temporary Notes.
Until definitive Notes are prepared and ready for delivery, the Company may prepare and the Trustee shall authenticate temporary Notes.
Temporary Notes shall be substantially in the form of definitive Notes but may have variations that the Company considers appropriate for temporary Notes. Without unreasonable delay, the Company shall prepare and the Trustee shall authenticate
definitive Notes in exchange for temporary Notes. Until such exchange, temporary Notes shall be entitled to the same rights, benefits and privileges as definitive Notes.
Section 2.12. Cancellation.
The Company at any time may deliver Notes to the Trustee for cancellation. The Registrar and the Paying Agent shall forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment. The Trustee shall cancel all Notes surrendered for registration of transfer, exchange, payment, replacement or cancellation and shall deliver such canceled Notes to the
Company. The Company may not reissue or resell, or issue new Notes to replace Notes that the Company has redeemed or paid, or that have been delivered to the Trustee for cancellation (other than in accordance with this Indenture).
Section 2.13. Defaulted Interest.
If the Company defaults on a payment of interest on the Notes, it shall pay the defaulted interest, plus (to the extent permitted by
law) any interest payable on the defaulted interest, in accordance with the terms hereof, to the Persons who are Holders on a subsequent special record date, which date shall be at least five Business Days prior to the payment date. The Company
shall fix such special record date and payment date in a manner satisfactory to the Trustee. At least 10 days before such special record date, the Company shall mail to each Holder a notice that states the special record date, the payment date and
the amount of defaulted interest, and interest payable on defaulted interest, if any, to be paid. The Company may make payment of any defaulted interest in any other lawful manner not inconsistent with the requirements (if applicable) of any
securities exchange on which the Notes may be listed and, upon such notice as may be required by such exchange, if, after written notice given by the Company to the Trustee of the proposed payment pursuant to this sentence, such manner of payment
shall be deemed practicable by the Trustee.
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Section 2.14. CUSIP Number.
The Company in issuing the Notes may use a “CUSIP,” “ISIN” or other similar number, and if so, such CUSIP, ISIN or other
similar number shall be included in notices of redemption or exchange as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness or accuracy of the CUSIP, ISIN or other similar
number printed in the notice or on the Notes, and that reliance may be placed only on the other identification numbers printed on the Notes. The Company shall promptly notify the Trustee of any such CUSIP, ISIN or other similar number used by the
Company in connection with the issuance of the Notes and of any change in the CUSIP, ISIN or other similar number.
Section 2.15.
Deposit of Moneys.
Prior to 11:00 a.m., New York City time, on each Interest Payment Date and Maturity Date, the Company shall have
deposited with the Paying Agent in immediately available funds money sufficient to make cash payments, if any, due on such Interest Payment Date or Maturity Date, as the case may be, in a timely manner which permits the Trustee to remit payment to
the Holders on such Interest Payment Date or Maturity Date, as the case may be. The principal and interest on a Global Note shall be payable to the Depositary of such Global Note or its nominee, as the case may be, as the sole registered owner and
the sole Holder of the Notes represented thereby. The principal and interest on Physical Notes shall be payable, either in person or by mail, at the office of the Paying Agent.
Section 2.16. Book-Entry Provisions for Global Notes.
(a) The 2018 Rule 144A Notes initially shall be represented by one or more Notes of the same series in registered, global form without interest
coupons (collectively, the “2018 Rule 144A Global Notes”). The 2020 Rule 144A Notes initially shall be represented by one or more Notes of the same series in registered, global form without interest coupons (collectively, the
“2020 Rule 144A Global Notes” and, together with the 2018 Rule 144A Global Notes, the “Rule 144A Global Notes”). The 2018 Regulation S Notes initially shall be represented by one or more Notes of the same series in
registered, global form without interest coupons (collectively, the “2018 Regulation S Global Notes”). The 2020 Regulation S Notes initially shall be represented by one or more Notes in registered, global form without interest
coupons (collectively, the “2020 Regulation S Global Notes” and, together with the 2018 Regulation S Global Notes, the “Regulation S Global Notes”). The Rule 144A Global Notes and the Regulation S Global Notes and
any other global notes representing the Notes (collectively, the “Global Notes”) shall bear legends as set forth in Exhibit D. The Global Notes initially shall (i) be registered in the name of the Depositary or the
nominee of such Depositary, in each case for credit to an account of an Agent Member, (ii) be delivered to The Bank of New York Mellon as custodian for such Depositary and (iii) bear legends as set forth in Exhibit B with respect to
Rule 144A Global Note and Exhibit C with respect to a Regulation S Global Note.
Members of, or direct or indirect participants in,
the Depositary (“Agent Members”) shall have no rights under this Indenture with respect to any Global Note held on their behalf by the Depositary, or the Trustee as its custodian, or under the Global Notes, and the Depositary may be
treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner of the Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent
of the Company or the Trustee from giving effect to any written certification, proxy or other authorization (which may be in electronic form) furnished by the Depositary or impair, as between the Depositary and its Agent Members, the operation of
customary practices governing the exercise of the rights of a Holder of any Note.
None of the Company, any Guarantor, the Trustee, the
Registrar, any Paying Agent or any agent of any of them shall have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests in the Notes, for maintaining, supervising or
reviewing any records relating to such beneficial owner interests, or for any acts or omissions of a Depositary or for any transactions between a Depositary and any beneficial owner or between or among beneficial owners. No owner of a beneficial
interest in the Notes shall have any rights under this Indenture, and the Depositary or its nominee, if any, shall be deemed and treated by the Company, any Guarantor, the Trustee, the Registrar, any Paying Agent or any agent of any of them as the
absolute owner and holder of such Notes for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, any Guarantor, the Trustee, the Registrar, any Paying Agent or any agent of any of them from giving effect
to any written certification, proxy or other authorization furnished by a Depositary, or any of its members and any other Person on whose behalf such member may act, the operation of customary practices of such Persons governing the exercise of the
rights of a beneficial owner of any Notes.
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(b) Transfers and exchanges pursuant to this Section 2.16 and Section 2.17 may only be
made between Notes of the same series. Transfers of Global Notes shall be limited to transfers in whole, but not in part, to the Depositary, its successors or their respective nominees. Interests of beneficial owners in the Global Notes may be
transferred or exchanged for Physical Notes in accordance with the rules and procedures of the Depositary and the provisions of Section 2.17. In addition, a Global Note shall be exchangeable for Physical Notes if (i) the Depositary
(x) notifies the Company that it is unwilling or unable to continue as depositary for such Global Note or (y) has ceased to be registered as a clearing agency under the Exchange Act, and, with respect to (x) or (y), the Company
thereupon fails to appoint a successor depositary within 90 days of such notice or cessation, (ii) the Company, at its option, notifies the Trustee in writing that it elects to effect the issuance of Physical Notes or (iii) upon the
request of the Depositary at any time that there shall have occurred and be continuing an Event of Default with respect to the Notes. In all cases, Physical Notes delivered in exchange for any Global Note or beneficial interests therein shall be
registered in the names, and issued in any approved denominations, requested by or on behalf of the Depositary (in accordance with its customary procedures).
(c) In connection with any transfer or exchange of a portion of the beneficial interest in any Global Note to beneficial owners pursuant to
paragraph (b) of this Section 2.16, the Registrar shall (if one or more Physical Notes are to be issued) reflect on its books and records the date and a decrease in the principal amount of the Global Note in an amount equal to the
principal amount of the beneficial interest in the Global Note to be transferred, and the Company shall execute, and the Trustee shall upon receipt of a written order from the Company authenticate and make available for delivery, one or more
Physical Notes of like tenor and amount.
(d) In connection with the transfer of Global Notes as an entirety to beneficial owners pursuant
to paragraph (b) of this Section 2.16, the Global Notes shall be deemed to be surrendered to the Trustee for cancellation, and the Company shall execute, and the Trustee shall authenticate and deliver, to each beneficial owner identified
by the Depositary in writing in exchange for its beneficial interest in the Global Notes, an equal aggregate principal amount of Physical Notes of authorized denominations.
(e) Any Physical Note constituting a Restricted Note delivered in exchange for an interest in a Global Note pursuant to Section 2.17(b),
or clause (c) or (d) of this Section 2.16 shall, except as otherwise provided by Sections 2.17(a) and Section 2.17(c), bear the Private Placement Legend or, in the case of the Regulation S Global Note, the legend set forth in
Exhibit C, in each case, unless the Company determines otherwise in compliance with applicable law.
(f) Any beneficial interest in
one of the Global Notes that is transferred to a Person who takes delivery in the form of an interest in another Global Note shall, upon transfer, cease to be an interest in such Global Note and become an interest in such other Global Note and,
accordingly, shall thereafter be subject to all transfer restrictions and other procedures applicable to beneficial interests in such other Global Note for as long as it remains such an interest.
(g) The Holder of any Global Note may grant proxies and otherwise authorize any Person, including Agent Members and Persons that may hold
interests through Agent Members, to take any action which a Holder is entitled to take under this Indenture or the Notes.
Section 2.17. Special Transfer Provisions.
(a) Transfers to QIBs. The following provisions shall apply with respect to the registration or any proposed registration of transfer of
a Note constituting a Restricted Note to a QIB (excluding transfers to Non-U.S. Persons):
(1) the Registrar shall
register the transfer if such transfer is being made by a proposed transferor who has checked the box provided for on such Holder’s Note stating, or to a transferee who has advised the Company and the Registrar in writing, that it is purchasing
the Note for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a QIB within the meaning of Rule 144A, and is aware that the sale to it is being made in reliance on Rule
144A and acknowledges that it has received such information regarding the Company as it has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon its foregoing
representations in order to claim the exemption from registration provided by Rule 144A; and
(2) if the proposed
transferee is an Agent Member, and the Notes to be transferred consist of Physical Notes which after transfer are to be evidenced by an interest in the Global Note, upon receipt by the Registrar of instructions given in accordance with the
Depositary’s and the Registrar’s procedures, the Registrar shall reflect on its books and records the date and an increase in the principal amount of the Global Note in an amount equal to the principal amount of the Physical Notes to be
transferred, and the Trustee shall cancel the Physical Notes so transferred.
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(b) Transfers to Non-QIB Institutional Accredited Investors and Non-U.S. Persons. The
following provisions shall apply with respect to the registration of any proposed transfer of a Note constituting a Restricted Note to any Institutional Accredited Investor which is not a QIB or to any Non-U.S. Person:
(1) the Registrar shall register the transfer of any Note constituting a Restricted Note whether or not such Note bears the
Private Placement Legend, if (x) the requested transfer is after the later of (i) the first anniversary of the Issue Date or (ii) such later date, if any, as may be required by the exemption from registration provided by Rule 144
under the Securities Act for non-Affiliates of an issuer (provided, however, that neither the Company nor any Affiliate of the Company has held any beneficial interest in such Note, or portion thereof, at any time on or prior the later
of (i) the first anniversary of the Issue Date or (ii) such later date, if any, as may be required by the exemption from registration provided by Rule 144 under the Securities Act for non-Affiliates
of an issuer), as evidenced by an Officer’s Certificate from the Company to such effect or (y)(1) in the case of a transfer to an Institutional Accredited Investor which is not a QIB (excluding Non-U.S. Persons), the proposed transferee has
delivered to the Registrar a certificate substantially in the form of Exhibit F hereto and any legal opinions and certifications required thereby or (2) in the case of a transfer to a Non-U.S. Person, the proposed transferor has
delivered to the Registrar a certificate substantially in the form of Exhibit E hereto; and
(2) if the proposed
transferor is an Agent Member holding a beneficial interest in the Global Note, upon receipt by the Registrar of (x) the certificate, if any, required by clause (b)(1) of this Section 2.17 and (y) written instructions given in
accordance with the Depositary’s and the Registrar’s procedures; whereupon (a) the Registrar shall reflect on its books and records the date and (if the transfer does not involve a transfer of outstanding Physical Notes) a decrease in
the principal amount of such Global Note in an amount equal to the principal amount of the beneficial interest in the Global Note to be transferred and (b) the Company shall execute and the Trustee shall authenticate and deliver, one or more
Physical Notes of like tenor and amount; and
(3) in the case of a transfer to a Non-U.S. Person, if the proposed
transferee is an Agent Member, and the Notes to be transferred consist of Physical Notes, which after transfer are to be evidenced by an interest in a Regulation S Global Note, upon receipt by the Registrar of written instructions given in
accordance with the Depositary’s and the Registrar’s procedures, the Registrar shall reflect on its books and records the date and an increase in the principal amount of such Regulation S Global Note in an amount equal to the principal
amount of Physical Notes to be transferred, and the Trustee shall cancel the Physical Notes so transferred.
(c) Private Placement
Legend. Upon the registration of transfer, exchange or replacement of Notes not bearing the Private Placement Legend, the Registrar shall deliver Notes that do not bear the Private Placement Legend. Upon the registration of transfer, exchange or
replacement of Notes bearing the Private Placement Legend, the Registrar shall deliver only Notes that bear the Private Placement Legend unless (i) such Note has been issued pursuant to Section 2.17(f), (ii) there is delivered to the
Registrar an Opinion of Counsel reasonably satisfactory to the Company and the Trustee to the effect that neither such legend nor the related restrictions on transfer are required in order to maintain compliance with the provisions of the Securities
Act, (iii) such Note has been sold pursuant to an effective registration statement under the Securities Act and the Registrar has received an Officer’s Certificate from the Company to such effect or (iv) the requested transfer is
after the later of (i) the first anniversary of the Issue Date or (ii) such later date, if any, as may be required by the exemption from registration provided by Rule 144 under the Securities Act for non-Affiliates of an issuer
(provided, however, that neither the Company nor an Affiliate of the Company has held any beneficial interest in such Note or portion thereof at any time since the Issue Date) and the Registrar has received an Officer’s
Certificate from the Company to such effect.
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(d) General. By its acceptance of any Note bearing the Private Placement Legend, each
Holder of such Note acknowledges the restrictions on transfer of such Note set forth in this Indenture and in the Private Placement Legend and agrees that it will transfer such Note only as provided in this Indenture.
(e) Certain Transfers in Connection with and After the Exchange Offer under the Registration Rights Agreement. Notwithstanding any
other provision of this Indenture:
(1) no Exchange Notes issued may be exchanged by the Holder thereof for an Initial
Note;
(2) accrued and unpaid interest on the Initial Notes being exchanged in the Exchange Offer shall be due and payable
on the next Interest Payment Date for the Exchange Notes following the Exchange Offer and shall be paid to the Holder on the relevant record date of the Exchange Notes issued in respect of the Initial Notes being exchanged; and
(3) interest on the Initial Notes being exchanged in the Exchange Offer shall cease to accrue on (and including) the date of
completion of the Exchange Offer and interest on the Exchange Notes to be issued in the Exchange Offer shall accrue from (but excluding) the date of the completion of the Exchange Offer.
(f) Exchange Offer. Upon the occurrence of the Exchange Offer with respect to the Notes of a series, the Company will issue and, upon a
written order of the Company the Trustee will authenticate:
(1) one or more Global Notes of such series not bearing the
Private Placement Legend in an aggregate principal amount equal to the principal amount of the beneficial interests in the Global Notes of such series bearing the Private Placement Legend that are accepted for exchange in the Exchange Offer by
Persons that (A) are not Participating Broker-Dealers, (B) are not participating in a distribution of the Exchange Notes and (C) are not affiliates (as defined in Rule 144) of the Company, as evidenced by an Officer’s Certificate
from the Company to such effect; or
(2) one or more Physical Notes of such series not bearing the Private Placement
Legend in an aggregate principal amount equal to the principal amount of the Physical Notes of such series bearing the Private Placement Legend that are accepted for exchange in the Exchange Offer by Persons that (A) are not Participating
Broker-Dealers, (B) are not participating in a distribution of the Exchange Notes and (C) are not affiliates (as defined in Rule 144) of the Company, as evidenced by an Officer’s Certificate from the Company to such effect.
Concurrently with the issuance of such Notes, the Trustee will cause the aggregate principal amount of the applicable Global Notes bearing the
Private Placement Legend to be reduced accordingly, and the Company will execute and the Trustee will authenticate and deliver to the Persons designated by the Holders of Physical Notes so accepted Physical Notes not bearing the Private Placement
Legend in the appropriate principal amount.
Section 2.18. Computation of Interest.
Interest on the Notes shall be computed in accordance with the terms of the Notes.
ARTICLE III
REDEMPTION AND
PREPAYMENT
Section 3.01. Election To Redeem; Notices to Trustee.
If the Company elects to redeem any Notes pursuant to this Article III, at least 30 days prior to the Redemption Date (unless a shorter notice
shall be agreed to in writing by the Trustee) but not more than 60 days before the Redemption Date, the Company shall notify the Trustee in writing of the series of Notes to be redeemed, the Redemption Date and the principal amount of such Notes to
be redeemed and the Redemption Price, and deliver to the Trustee, no later than two Business Days prior to the Redemption Date, an Officer’s Certificate stating that such redemption will comply with the conditions contained this Article III.
Notice given to the Trustee pursuant to this Section 3.01 may, at the Company’s discretion, be subject to the satisfaction of one or more conditions precedent.
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Section 3.02. Selection by Trustee of Notes To Be Redeemed.
If the Company elects to redeem less than all of the Notes of any series at any time, the Trustee will select Notes of such series by lot on a
pro rata basis (or, in the case of Global Notes, based on a method that most nearly approximates a pro rata selection as the Trustee deems fair and appropriate) unless an alternative method of selection is otherwise required by law or
applicable stock exchange or depositary requirements.
The Trustee shall promptly notify the Company of the Notes selected for redemption
and, in the case of any partial redemption, the principal amount thereof to be redeemed.
The Company will redeem Notes of $2,000 or less
in whole and not in part. For all purposes of this Indenture, unless the context otherwise requires, provisions of this Indenture that apply to Notes called for redemption also apply to portions of Notes called for redemption.
Section 3.03. Notice of Redemption.
The Company will cause notices of redemption to be mailed by first-class mail at least 30 but not more than 60 days before the Redemption Date
to each Holder of Notes of the series to be redeemed at its registered address. The Company may provide in the notice that payment of the Redemption Price and performance of the Company’s obligations with respect to the redemption or purchase
may be performed by another Person. Any notice may, at the Company’s discretion, be subject to the satisfaction of one or more conditions precedent.
The notice shall identify the Notes to be redeemed (including the series and the CUSIP numbers thereof) and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if fewer than all outstanding Notes of a series are to be redeemed, the portion of the principal amount of such Note to be
redeemed and that, after the Redemption Date and upon surrender of such Note, a new Note or Notes in principal amount equal to the unredeemed portion will be issued;
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered to the Paying Agent to collect the Redemption Price;
(6) that unless the Company defaults in making the redemption payment, interest on Notes called for redemption ceases to
accrue on and after the Redemption Date;
(7) if such notice is conditioned upon the occurrence of one or more conditions
precedent, the nature of such conditions precedent;
(8) the aggregate principal amount of Notes of such series that are
being redeemed;
(9) the paragraph of the Notes and/or Section of this Indenture pursuant to which the Notes called for
redemption are being redeemed; and
(10) that no representation is made as to the correctness or accuracy of the CUSIP
number, if any, listed in such notice or printed on the Notes.
At the Company’s written request made at least five Business Days
prior to the date on which notice is to be given, the Trustee shall give the notice of redemption in the Company’s name and at the Company’s sole expense.
Section 3.04. Effect of Notice of Redemption.
Once the notice of redemption described in Section 3.03 is mailed, except as provided in the last sentence of the first paragraph of
Section 3.03, Notes called for redemption become irrevocably due and payable on the Redemption Date and at the Redemption Price, including any premium, plus interest accrued to the Redemption
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Date. Upon surrender to the Paying Agent, such Notes shall be paid at the Redemption Price, including any premium, plus interest accrued to the Redemption Date; provided that (a) if
the Redemption Date is after a record date and on or prior to the Interest Payment Date, the accrued interest shall be payable to the Holder of the redeemed Notes registered on the relevant record date; and (b) that if a Redemption Date is not
a Business Day, payment shall be made on the next succeeding Business Day and no interest shall accrue for the period from such Redemption Date to such succeeding Business Day. Such notice, if mailed in the manner provided in Section 3.03,
shall be conclusively presumed to have been given whether or not the Holder receives such notice.
Section 3.05. Deposit of
Redemption Price.
On or prior to 11:00 A.M., New York City time, on each Redemption Date, the Company shall deposit with the Paying
Agent in immediately available funds money sufficient to pay the Redemption Price of, including premium, if any, and accrued interest on all Notes to be redeemed on that date other than Notes or portions thereof called for redemption on that date
which have been delivered by the Company to the Trustee for cancellation.
On and after any Redemption Date, if money sufficient to pay
the Redemption Price of, including premium, if any, and accrued interest on Notes called for redemption shall have been made available in accordance with the immediately preceding paragraph, the Notes called for redemption will cease to accrue
interest and the only right of the Holders of such Notes will be to receive payment of the Redemption Price of and, subject to Section 3.04, accrued and unpaid interest on such Notes to the Redemption Date. If any Note surrendered for
redemption shall not be so paid, interest will be paid, from the Redemption Date until such redemption payment is made, on the unpaid principal of the Note and any interest not paid on such unpaid principal, in each case at the rate and in the
manner provided in the Notes.
Section 3.06. Notes Redeemed in Part.
If any Note is to be redeemed in part only, the notice of redemption that relates to that Note will state the portion of the principal amount
thereof that is to be redeemed. The Company will issue a new Note of the applicable series in a principal amount equal to the unredeemed portion of the original Note in the name of the Holder upon cancellation of the original Note. Notes called for
redemption become due on the date fixed for redemption. On and after such date, unless the Company defaults in payment of the Redemption Price on such date, interest ceases to accrue on the Notes or portions thereof called for such redemption.
Section 3.07. Optional Redemption.
(a) 2018 Notes. At any time and from time to time prior to the Maturity Date, the Company may redeem the 2018 Notes, in whole or in
part, upon not less than 30 nor more than 60 days’ prior notice, at a price equal to the greater of:
(1) 100% of the
aggregate principal amount of any 2018 Notes being redeemed, and
(2) the sum of the present values of the remaining
scheduled payments of principal and interest on the 2018 Notes being redeemed that would be due to the Maturity Date, not including unpaid interest accrued to, but excluding, the Redemption Date, discounted to the Redemption Date on a semiannual
basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 30 basis points with respect to any 2018 Notes,
plus, in each case, unpaid interest on the 2018 Notes being redeemed accrued to, but excluding, the Redemption Date.
The Company will, however, pay the interest installment due on any Interest Payment Date that occurs on or before a Redemption Date to the Holders of the
affected 2018 Notes as of the close of business on the applicable record date.
(b) 2020 Notes. At any time and from time to time
prior to the date that is one month prior to the Maturity Date, the Company may redeem the 2020 Notes, in whole or in part, upon not less than 30 nor more than 60 days’ prior notice, at a price equal to the greater of:
(1) 100% of the aggregate principal amount of any 2020 Notes being redeemed, and
(2) the sum of the present values of the remaining scheduled payments of principal and interest on the 2020 Notes being
redeemed that would be due if the 2020 Notes matured on the date that is one month prior to the Maturity Date, not including unpaid interest accrued to, but excluding, the Redemption Date, discounted to the Redemption Date on a semiannual basis
(assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 35 basis points with respect to any 2020 Notes,
plus, in each case, unpaid interest on the 2020 Notes being redeemed accrued to, but excluding, the Redemption Date.
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On or after the date that is one month prior to the Maturity Date, the 2020 Notes will be redeemable in whole at
any time or in part, from time to time, at the option of the Company, upon at least 15 days’ but no more than 60 days’ prior notice, at a price equal to 100% of the principal amount of the 2020 Notes to be redeemed plus accrued and unpaid
interest thereon to, but excluding, the Redemption Date.
The Company will, however, pay the interest installment due on any Interest Payment Date that
occurs on or before a Redemption Date to the Holders of the affected 2020 Notes as of the close of business on the applicable record date.
(c) Any redemption pursuant to this Section 3.07 shall be made pursuant to the provisions of Sections 3.01 through 3.06.
Section 3.08. Mandatory Redemption.
The Company is not required to make mandatory redemption or sinking fund payments with respect to the Notes.
Section 3.09. Tax Redemption.
If (a) a Payor becomes or will become obligated to pay Additional Amounts with respect to any Notes of any series pursuant to
Section 4.13, as a result of any change in, or amendment to, the laws or regulations of a Relevant Jurisdiction, or any change in the official interpretation or application of the laws or regulations of a Relevant Jurisdiction, which change or
amendment becomes effective after the date of the Offering Memorandum (or, if the applicable Relevant Jurisdiction became a Relevant Jurisdiction after the date of the Offering Memorandum, such later date), and (b) such obligation cannot be
avoided by the Company taking reasonable measures available to the Company, the Company may at its option, having given not less than 30 days notice to the Holders of such Notes (which notice shall be irrevocable), redeem all, but not a portion of,
Notes of the applicable series at any time at their principal amount together with interest accrued to, but excluding, the date of redemption, provided that no such notice of redemption shall be given earlier than 30 days prior to the earliest date
on which the Company would be obliged to pay such Additional Amounts were a payment in respect of the Notes of such series then due. Prior to the publication of any notice of redemption pursuant to this paragraph, the Company shall deliver to the
Trustee (i) a certificate stating that the requirements referred to in (a) and (b) above are satisfied, and (ii) an Opinion of Counsel to the effect that the Company has or will become obliged to pay such Additional Amounts as a
result of the change or amendment, in each case to be held by the Trustee and made available for viewing at the offices of the Trustee on written request by any Holder of the Notes of the applicable series.
ARTICLE IV
COVENANTS
Section 4.01. Payment of Principal, Premium and Interest.
The Company covenants and agrees that it will duly and punctually pay the principal of (and premium, if any) and interest on the Notes in
accordance with the terms of the Notes and this Indenture.
Section 4.02. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for Notes an office or agency where Notes may be presented or surrendered for payment, where
Notes may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect of the Notes and this Indenture may be served. The
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Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company 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 Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate
one or more other offices or agencies where the Notes may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency in each Place of Payment for Notes for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change
in the location of any such other office or agency.
Section 4.03. Reports to Holders.
(a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the
Company will file with the Commission and provide the Trustee with such annual and quarterly reports and such information, documents and other reports as are specified in Sections 13 and 15(d) of the Exchange Act and applicable to a U.S. corporation
subject to such sections, such information, documents and reports to be so filed and provided at the times specified for the filing of such information, documents and reports under such sections; provided, however, that (1) the
Company will not be required to provide the Trustee with any such information, documents and reports that are filed with the Commission and (2) the Company will not be so obligated to file such information, documents and reports with the
Commission if the Commission does not permit such filings; provided further, however, that if the Commission does not permit such filings, the Company will be required to provide to Holders any such information, documents or reports
that are not so filed. The Company will also comply with the other provisions of TIA Section 314(a), including the provision of the compliance certificate under TIA Section 314(a)(4), which compliance certificate shall be delivered to the
Trustee, commencing with the year 2015.
(b) Notwithstanding anything herein to the contrary, in the event that the Company fails to
comply with its obligation to file or provide such information, documents and reports as required hereunder, the Company will be deemed to have cured such Default for purposes of Section 6.01(4) upon the filing or provision of all such
information, documents and reports required hereunder prior to the expiration of 120 days after written notice to the Company of such failure from the Trustee or the Holders of at least 25% of the principal amount of the applicable series of Notes.
(c) For so long as any Restricted Notes are outstanding, the Company agrees that, in order to render such Restricted Notes eligible for
resale pursuant to Rule 144A under the Securities Act, it will make available, upon request, to any Holder of Restricted Notes or prospective purchasers of Restricted Notes the information specified in Rule 144A(d)(4), unless the Company furnishes
such information to the Commission pursuant to Section 13 or 15(d) of the Exchange Act.
(d) Notwithstanding anything herein to the
contrary, the information, documents and reports required pursuant to this Indenture may, at the option of the Company, instead be those of any direct or indirect parent entity of the Company so long as such parent entity fully and unconditionally
guarantees, by execution of a supplemental indenture, the obligations of the Company in respect of the notes and such parent entity and the Company comply with the requirements of Rule 3-10 of Regulation S-X promulgated by the Commission (or any
successor provision).
Section 4.04. Corporate Existence.
Subject to Article V, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its existence
as a public limited liability (naamloze vennootschap).
Section 4.05. Money for Notes Payments To Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect to the Notes, it will, on or before each due date of the
principal of (and premium, if any) or interest on any of the Notes, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal (and premium, if any) or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of its action or failure so to act.
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Whenever the Company shall have a Paying Agent for the Notes, it will, prior to 11:00 a.m., New
York City time, on each due date of the principal of (and premium, if any) or interest on the Notes, deposit with the Paying Agent a sum sufficient to pay the principal (and premium, if any) or interest so becoming due, such sum to be held in trust
for the benefit of the Persons entitled to such principal, premium or interest, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause the Paying Agent, other than the Trustee, to execute and deliver to the Trustee an instrument in which the Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that the Paying Agent will:
(a) hold all sums
held by it for the payment of the principal of (and premium, if any) or interest on the Notes in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided;
(b) give the Trustee notice of any default by the Company (or any other obligor upon the Notes) in the making of any payment
of principal (and premium, if any) or interest on the Notes; and
(c) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by the Paying Agent.
The Company
may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct the Paying Agent to pay, to the Trustee all sums held in trust by the Company or the Paying
Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Company or the Paying Agent; and, upon such payment by the Paying Agent to the Trustee, the Paying Agent shall be released from all
further liability with respect to such money.
Any money deposited with the Trustee or the Paying Agent, or then held by the Company, in
trust for the payment of the principal of (and premium, if any) or interest on the Notes and remaining unclaimed for three years after such principal (and premium, if any) or interest has become due and payable shall be paid to the Company on
Company Order, or (if then held by the Company) shall be discharged from such trust; and the Holder of such Note shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee or
the Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or the Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in a newspaper published in the English language, customarily published on each Business Day and of general circulation in New York, New York, 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 publication, any unclaimed balance of such money then remaining will be repaid to the Company.
Section 4.06. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged, before the same shall become delinquent, (1) all taxes, assessments
and governmental charges levied or imposed upon the Company or any Subsidiary of the Company or upon the income, profits or property of the Company or any Subsidiary of the Company, and (2) all lawful claims against the Company or any
Subsidiary of the Company for labor, materials and supplies, which in the case of either clause (1) or (2) of this Section 4.06, if unpaid, might by law become a lien upon a Property; provided, however, that neither the
Company nor any Subsidiary of the Company shall be required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or claim whose amount, applicability or validity is being contested in good faith by appropriate
proceedings.
Section 4.07. Limitation on Liens.
The Company will not, and will not permit any Subsidiary of the Company to, directly or indirectly, Incur or permit to exist any Lien (the
“Initial Lien”) of any nature whatsoever on any of its properties (including Capital Stock of a Subsidiary of the Company), whether owned on the Issue Date or thereafter acquired, securing any Indebtedness of the Company or a
Domestic Subsidiary of the Company, other than Permitted Liens, without effectively providing that the Notes shall be secured equally and ratably with (or prior to) the obligations so secured for so long as such obligations are so secured.
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Any Lien created for the benefit of the Holders pursuant to this Section 4.07 shall provide
by its terms that such Lien shall be automatically and unconditionally released and discharged upon the release and discharge of the Initial Lien.
Section 4.08. Purchase of Notes Upon a Change of Control Repurchase Event.
(a) If a Change of Control Repurchase Event occurs with respect to a series of Notes, each Holder of such series of Notes will have the right
to require that the Company purchase all or any part (in denominations of $2,000 and integral multiples of $1,000 in excess thereof) of such Holder’s Notes of such series pursuant to a Change of Control offer (a “Change of Control
Offer”) on the terms set forth in this Indenture, except that the Company shall not be obligated to repurchase the Notes of any series pursuant to this Section 4.08 in the event that the Company has exercised the right to redeem all of
the Notes of such series as described in Section 3.07. In the Change of Control Offer, the Company will offer to purchase all of the Notes of such series at a purchase price (the “Change of Control Purchase Price”) in cash in
an amount equal to 101% of the principal amount of such series of Notes, plus accrued but unpaid interest, if any, to (but not including) the date of purchase (the “Change of Control Purchase Date”) (subject to the rights of Holders
of record on relevant record dates to receive interest due on the relevant Interest Payment Date if the Notes of such series have not been redeemed prior to such record date).
(b) Within 30 days after any Change of Control Repurchase Event with respect to a series of Notes or, at the Company’s option, prior to
such Change of Control but after it is publicly announced, provided that a definitive agreement is in place for such Change of Control, the Company must notify the Trustee and give written notice of the Change of Control Repurchase Event to
each Holder of such series of Notes at its address appearing in the security register. The notice must state, among other things:
(1) that a Change of Control Repurchase Event has occurred or may occur with respect to such series of Notes and the date of
such event;
(2) the purchase price and the purchase date which shall be fixed by the Company on a Business Day no earlier
than 30 days nor later than 60 days from the date the notice is transmitted, or such later date as is necessary to comply with requirements under the Exchange Act; provided that the purchase date may not occur prior to the Change of Control;
(3) that any Note of such series not tendered will continue to accrue interest;
(4) that, unless the Company defaults in the payment of the Change of Control Purchase Price, any Notes accepted for payment
pursuant to the Change of Control Offer shall cease to accrue interest after the Change of Control Purchase Date; and
(5)
other procedures that a Holder of Notes of such series must follow to accept a Change of Control Offer or to withdraw acceptance of the Change of Control Offer.
(c) The Company will comply with the applicable tender offer rules, including Rule 14e-l under the Exchange Act, and any other applicable
securities laws or regulations in connection with a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.08, the Company will comply with the applicable
securities laws and regulations and will not be deemed to have breached its obligations under this Section 4.08 by virtue of its compliance with such securities laws or regulations. The Company will not be required to make a Change of Control
Offer upon a Change of Control Repurchase Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements described in this Indenture applicable to a Change of Control Offer made
by the Company and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.
(d) On the Change of
Control Purchase Date, the Company will, to the extent permitted by law:
(1) accept for payment all Notes of each
applicable series or portions thereof properly tendered pursuant to the Change of Control Offer;
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(2) deposit with the Paying Agent an amount equal to the aggregate Change of
Control Purchase Price in respect of all Notes of each applicable series or portions thereof so tendered; and
(3)
deliver, or cause to be delivered, to the Trustee for cancellation of the Notes so accepted together with an Officer’s Certificate to the Trustee stating that such Notes or portions thereof have been tendered to and purchased by the Company.
Section 4.09. Restrictions on Sale Leaseback Transactions.
Neither the Company nor any Domestic Subsidiary of the Company will enter into any Sale Leaseback Transaction with respect to any property
unless:
(a) the Company or such Domestic Subsidiary would be entitled to create a Lien on such property securing
Attributable Debt without equally and ratably securing the Notes pursuant to Section 4.07; and
(b) the gross
proceeds received by the Company or such Domestic Subsidiary in connection with such Sale Leaseback Transaction are at least equal to the Fair Market Value of such property.
Notwithstanding the foregoing, the Company or any Domestic Subsidiary of the Company may enter into a Sale Leaseback Transaction if
(x) during the twelve months following the effective date of the Sale Leaseback Transaction, the Company or such Domestic Subsidiary applies an amount equal to the greater of the net proceeds of such sale or transfer and the Fair Market Value
of the property that the Company or such Domestic Subsidiary leases in the transaction to (i) the voluntary retirement of the Notes or other Indebtedness of the Company or any Domestic Subsidiary of the Company, provided that such
Indebtedness ranks pari passu or senior to the Notes, or (ii) the acquisition, purchase, construction, development, extension or improvement of any property or assets of the Company or any Domestic Subsidiary of the Company used or to be
used by or for the benefit of the Company or any Domestic Subsidiary of the Company in the ordinary course of business, or (y) the Company or such Domestic Subsidiary equally and ratably secures the Notes as described under Section 4.07.
Section 4.10. Additional Guarantees.
If any Subsidiary of the Company that is not a Guarantor (other than a Receivables Entity) becomes a guarantor or an obligor in respect of any
Triggering Indebtedness, within 10 Business Days of such event the Company shall cause such Subsidiary to enter into a Supplemental Indenture pursuant to which such Subsidiary shall agree to Guarantee the Company’s Obligations under the Notes,
fully and unconditionally and on a senior basis; provided that in no event shall a Subsidiary of the Company that is not a Guarantor of the Notes on the Issue Date be required to provide a Guarantee of the Company’s Obligations under the
Notes if the Company reasonably determines that such Guarantee is prohibited by, or would be unduly burdensome under, applicable laws or would result in adverse tax consequences to the Company or any of its Subsidiaries.
Notwithstanding the foregoing, any Guarantee by any Guarantor shall be released in accordance with Section 10.07.
Each Guarantee shall be limited in amount to an amount not to exceed the maximum amount that can be guaranteed by the applicable Guarantor
without rendering the Guarantee, as it relates to such Guarantor, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer or similar laws affecting the rights of creditors generally.
Section 4.11. Compliance Certificate.
(a) The Company and each Guarantor shall deliver to the Trustee, within 120 days after the end of each fiscal year, an Officer’s
Certificate stating that a review of the activities of the Company and its Subsidiaries during the preceding fiscal year has been made under the supervision of the signing Officers with a view to determining whether the Company has kept, observed,
performed and fulfilled its obligations under this Indenture, and further stating, as to each such Officer signing such certificate, that to the best of his or her knowledge the Company has kept, observed, performed and fulfilled each and every
covenant contained in this Indenture and is not in default in the performance or observance of any of the terms, provisions and conditions of this Indenture (or, if a
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Default or Event of Default has occurred, describing all such Defaults or Events of Default of which he or she may have knowledge and what action the Company is taking or proposes to take with
respect thereto) and that to the best of his or her knowledge no event has occurred and remains in existence by reason of which payments on account of the principal of, premium on, if any, or interest, if any, on, the Notes is prohibited or if such
event has occurred, a description of the event and what action the Company is taking or proposes to take with respect thereto.
(b) So
long as any of the Notes are outstanding, the Company will deliver to the Trustee, forthwith upon any Officer becoming aware of any Default or Event of Default, an Officer’s Certificate specifying such Default or Event of Default and what
action the Company is taking or proposes to take with respect thereto.
Section 4.12. Stay, Extension and Usury Laws.
The Company and each of the Guarantors covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, plead, or
in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of this Indenture; and the Company and
each of the Guarantors (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it will not, by resort to any such law, hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such power as though no such law has been enacted.
Section 4.13. Payments of Additional Amounts.
All payments in respect of the Notes of any series by the Company, a Paying Agent, a Guarantor or any other Person on behalf of the Company, or
any successor thereto (each, a “Payor”) shall be made free and clear of, and without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature
(collectively, “Taxes”) unless such withholding or deduction is required by applicable law. Where the withholding or deduction of Taxes is imposed, collected, withheld, assessed or levied by or on behalf of any jurisdiction in which
the Payor is incorporated or tax resident (and in the case of the Paying Agent, the jurisdiction through which the Paying Agent makes the payments on the Notes), or any Governmental Authority or political subdivision thereof or therein having the
power to tax (a “Relevant Jurisdiction”) the Payor will, subject to the exceptions and limitations set forth below, pay as additional interest on the Notes of an applicable series such additional amounts (“Additional
Amounts”) as are necessary so that the net payment by the Company or a Paying Agent or other Payor of the principal of, premium, if any, and interest on such Notes, after deduction for any present or future tax, assessment or governmental
charge of a Relevant Jurisdiction, imposed by withholding with respect to the payment, will not be less than the amount that would have been payable in respect of such Notes had no withholding or deduction been required. Notwithstanding anything
herein to the contrary, the obligation to pay Additional Amounts shall not apply:
(1) to any Taxes that are only payable because a
present or former type of connection exists or existed between the Holder or beneficial owner of the Notes of any series and a Relevant Jurisdiction other than a connection related solely to purchase or ownership of Notes of such series;
(2) to any Holder that is not the sole beneficial owner of Notes of a series, or a portion thereof, or that is a fiduciary or partnership, but
only to the extent that the beneficial owner, a beneficiary or settlor with respect to the fiduciary, or a member of the partnership would not have been entitled to the payment of an Additional Amount had such beneficial owner, beneficiary, settlor
or member received directly its beneficial or distributive share of the payment;
(3) to any Taxes that are imposed or withheld because
the Holder or beneficial owner failed to accurately comply with a request from the Company or any Paying Agent to meet certification, identification or information reporting requirements concerning the nationality, residence or identity of the
Holder or beneficial owner of Notes of a series or to satisfy any information or reporting requirement, or to present the relevant note (where presentation is required), if compliance with such action is required as a precondition to exemption from,
or reduction in, such tax, assessment or other governmental charge by the Relevant Jurisdiction;
(4) to any Taxes that are imposed other
than by withholding or deduction by the Company or a Paying Agent from the payment under, or with respect to, the note;
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(5) to any estate, inheritance, gift, sales, excise, transfer, wealth, personal property or
similar Taxes;
(6) to any Taxes where withholding or deduction of such Taxes is imposed on a payment to an individual and is required to
be made pursuant to European Union Council Directive 2003/48/EC of June 3, 2003, European Union Council Directive 2014/48/EU of March 24, 2014, or any other European Union Directive on the taxation of savings income in the form of interest
payments implementing the conclusions of the ECOFIN (European Union Economic and Finance Ministers) Council Meeting of 26-27 November 2000 or any subsequent Council Meeting amending or supplementing those conclusions, or any law implementing or
complying with, or introduced in order to conform to such Directive;
(7) to any Taxes where withholding or deduction of such Taxes is
imposed on a Note of any series presented for payment by or on behalf of a beneficial owner who would have been able to avoid the withholding or deduction by presenting the note (where presentation is required) to another Paying Agent in a member
state of the European Union;
(8) to any Taxes to the extent such Taxes were imposed as a result of the presentation of a Note for payment
(where presentation is required) more than 30 days after the relevant amount is first made available for payment to the Holder (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); or
(9) in the case of any combination of the above items.
In addition, any amounts to be paid on the Notes of any series will be paid net of any deduction or withholding imposed or required pursuant
to Sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”), any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b) of the
Code, or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such Sections of the Code, and no additional amounts will be required to be
paid on account of any such deduction or withholding.
The Notes are subject in all cases to any tax, fiscal or other law or regulation or
administrative or judicial interpretation applicable. Except as specifically provided under this Section 4.13 and under Section 3.09 the Company is not required to make any payment with respect to any Taxes imposed by any Governmental
Authority or political subdivision having the power to tax.
ARTICLE V
SUCCESSORS
Section 5.01.
Consolidation, Merger and Sale of Assets.
(a) The Company will not consolidate with any other entity or accept a merger of any other
entity into the Company or permit the Company to be merged into another Person, or sell or lease all or substantially all the assets of the Company and its Subsidiaries to, any entity, unless:
(1) either the Company shall be the continuing entity or the successor, transferee or lessee entity, if other than the Company
(the “Successor Company”) shall expressly assume, by Supplemental Indenture thereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, all the obligations of the Company under the Notes and this Indenture;
(2) immediately after giving pro forma effect to such transaction, no Default shall have occurred and be
continuing; and
(3) the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of
Counsel, each stating that such transaction and such Supplemental Indenture (if any) comply with this Indenture.
(b) For purposes of this
Section 5.01, the sale, lease, conveyance, assignment, transfer or other disposition of all or substantially all of the properties and assets or one or more Subsidiaries of the Company, which properties and assets, if held by the Company
instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(c) The Successor Company will be the successor to the Company and shall succeed to, and be substituted for, and may exercise every right
and power of, the Company under this Indenture, and the predecessor Company, except in the case of a lease, shall be released from all obligations under this Indenture and the Notes.
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ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.
Each of the following events shall be an “Event of Default” with respect to each series of Notes:
(1) a failure to pay interest upon Notes of such series that continues for a period of 30 days after payment is due;
(2) a failure to pay the principal or premium, if any, on the Notes of such series when due upon maturity, redemption,
acceleration or otherwise;
(3) a failure to comply with Section 5.01;
(4) a failure to comply with (x) any of the Company’s and the Guarantors’ other agreements contained in this
Indenture and applicable to the Notes of such series (other than (i) a failure that is subject to clause (1), (2) or (3) of this Section 6.01 or (ii) a failure to comply with Section 4.03) for a period of 60 days after
receipt by the Company of written notice of such failure from the Trustee (or receipt by the Company and the Trustee of written notice of such failure from the Holders of at least 25% of the principal amount of the applicable series of Notes) or
(y) the requirements set forth in Section 4.03 for a period of 120 days after receipt by the Company of written notice of such failure from the Trustee (or receipt by the Company and the Trustee of written notice of such failure from the
holders of at least 25% of the principal amount of such series of Notes);
(5) one or more defaults shall have occurred
under any of the agreements, indentures or instruments under which the Company or any Significant Subsidiary has outstanding Indebtedness in excess of $150.0 million, individually or in the aggregate, and either (a) such default results from
the failure to pay such Indebtedness at its stated final maturity and such default has not been cured or the Indebtedness repaid in full within 20 days of the default or (b) such default or defaults have resulted in the acceleration of the
maturity of such Indebtedness and such acceleration has not been rescinded or such Indebtedness repaid in full within 20 days of the acceleration;
(6) one or more judgments or orders that exceed $150.0 million in the aggregate (net of amounts covered by insurance or
bonded) for the payment of money have been entered by a court or courts of competent jurisdiction against the Company or any Significant Subsidiary and such judgment or judgments have not been satisfied, stayed, annulled or rescinded within 60 days
after such judgment or judgments become final and nonappealable;
(7) any Guarantee by a Significant Subsidiary of the
Company’s Indenture Obligations under the Notes shall for any reason cease to be, or shall for any reason be held in any judicial proceeding not to be, or asserted in writing by any Significant Subisidiary or the Company not to be, in full
force and effect and enforceable in accordance with its terms, except to the extent contemplated by this Indenture and any such Guarantee by such Significant Subsidiary of the Company’s Indenture Obligations under the Notes, and any such
Default continues for 10 days;
(8) the Company or any Significant Subsidiary:
(A) commences a voluntary insolvency proceeding;
(B) consents to the entry of an order for relief against it in an involuntary insolvency proceeding or consents to its
dissolution or winding-up;
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(C) consents to the appointment of a Custodian of it or for any substantial part
of its property;
(D) makes a general assignment for the benefit of its creditors;
(E) generally is not paying its debts as they become due; or
(F) takes any comparable action under any foreign laws relating to insolvency;
provided, however, that the liquidation of any Subsidiary of the Company into another Subsidiary of the Company, other than as part of a credit
reorganization, shall not constitute an Event of Default under this Section 6.01(8); and
(9) a court of competent
jurisdiction enters an order or decree under any Bankruptcy Law that:
(A) is for relief against the Company or any
Significant Subsidiary in an involuntary insolvency proceeding;
(B) appoints a Custodian of the Company or any
Significant Subsidiary or for any substantial part of their property;
(C) orders the winding-up, liquidation or
dissolution of the Company or any Significant Subsidiary;
(D) orders the presentation of any plan or arrangement,
compromise or reorganization of the Company or any Significant Subsidiary; or
(E) grants any similar relief under any
foreign laws;
and in each such case the order or decree remains unstayed and in effect for 60 days.
The foregoing will constitute Events of Default whatever the reason for any such Event of Default and whether it is voluntary or involuntary
or is effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body.
Section 6.02. Acceleration of Maturity; Rescission.
If an Event of Default with respect to the Notes of a series (other than an Event of Default specified in Sections 6.01(8) and 6.01(9) with
respect to the Company) shall have occurred and be continuing, the Trustee or the Holders of at least 25% in outstanding principal amount of the Notes of such series, may declare to be immediately due and payable the principal amount of all of the
Notes of such series then outstanding, plus accrued but unpaid interest to the date of acceleration. If an Event of Default specified in Sections 6.01(8) and 6.01(9) with respect to the Company shall occur, such amount with respect to all the Notes
shall become automatically due and payable immediately without any further action or notice. After any such acceleration, but before a judgment or decree based on acceleration is obtained by the applicable person, the registered Holders of a
majority in principal amount of the then outstanding Notes of such series may cancel such acceleration if (i) the rescission would not conflict with any judgment or decree and (ii) if all existing Events of Default have been cured or
waived except nonpayment of principal, that has become due solely because of the acceleration. No such rescission shall affect any subsequent Default or impair any right consequent thereto.
Subject to Section 7.01, in case an Event of Default shall occur and be continuing, the Trustee shall 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 of Notes of any series, unless such Holders have offered to the Trustee reasonable security or indemnity. Subject to Section 7.06, the Holders of
a majority in aggregate principal amount of any series of 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 the
Trustee holds with respect to the Notes of such series.
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Section 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy by proceeding at law or in equity to collect the
payment of principal of, or premium, if any, and interest on the Notes of each applicable series or to enforce the performance of any provision of the Notes of each applicable series or this Indenture and may take any necessary action requested of
it as Trustee to settle, compromise, adjust or otherwise conclude any proceedings to which it is a party.
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. Any such proceeding instituted by the Trustee may be brought in its own name and as trustee of an express trust, and any recovery of judgment
shall, after provision for the payment of the reasonable compensation, expenses, disbursements of the Trustee and its counsel, be for the ratable benefit of the Holders of the Notes in respect of which such judgment has been recovered. 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. No remedy is exclusive of any other
remedy. All available remedies are cumulative, to the extent permitted by law. Any costs associated with actions taken by the Trustee under this Section 6.03 shall be reimbursed to the Trustee by the Company.
Section 6.04. Waiver of Past Defaults and Events of Default.
Provided the Notes of a series are not then due and payable by reason of a declaration of acceleration, the Holders of a majority in principal
amount of the then outstanding Notes of such series may on behalf of the Holders of all the affected Notes of such series waive any past Default with respect to such series of Notes and its consequences by providing written notice thereof to the
Company and the Trustee, except a Default (1) in the payment of interest on or the principal of any Note or (2) in respect of a covenant or provision hereof which under this Indenture cannot be modified or amended without the consent of
the Holder of each outstanding Note affected. In the case of any such waiver, the Company, the Trustee and the Holders of the Notes of the applicable series will be restored to their former positions and rights under this Indenture, respectively;
provided that no such waiver shall extend to any subsequent or other Default or impair any right consequent thereto.
Section 6.05. Control by Majority.
The Holders of at least a majority in aggregate principal amount of the outstanding Notes of a series may 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 of such series. However, the Trustee may refuse to follow any direction that conflicts with law or
this Indenture, that may involve the Trustee in personal liability, or that the Trustee determines in good faith may be unduly prejudicial to the rights of Holders of the affected Notes not joining in the giving of such direction and may take any
other action it deems proper that is not inconsistent with any such direction received from Holders of the Notes.
Section 6.06.
Limitation on Suits.
No Holder of the Notes of a series will have any right to institute any proceeding with respect to this
Indenture, or for any remedy hereunder, unless:
(1) the Trustee has failed to institute such proceeding for 60 days after
the Holder has previously given to the Trustee written notice of a continuing Event of Default with respect to the Notes of such series;
(2) the Holders of at least 25% in aggregate principal amount of outstanding Notes of such series have made a written request,
and offered reasonable indemnity, to the Trustee to institute such proceeding as Trustee; and
(3) the Trustee has not
received from the Holders of a majority in aggregate principal amount of the outstanding Notes of such series a direction that is inconsistent with such request.
However, the Holder of any Note will have an absolute and unconditional right to receive payment of the principal of, and premium, if any, or
interest on, such Note on or after the date or dates they are to be paid as expressed in such Note and to institute suit for the enforcement of any such payment.
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Section 6.07. Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder of a Note to receive payment of the principal of or premium, if
any, or interest, if any, on such Note (including in connection with an offer to purchase) or to bring suit for the enforcement of any such payment, on or after the due date expressed in the Notes shall not be impaired or affected without the
consent of such Holder.
Section 6.08. Collection Suit by Trustee.
If an Event of Default in payment of principal, premium or interest specified in Section 6.01(1) or (2) occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust against the Company (or any other obligor on the Notes) for the whole amount of unpaid principal and accrued interest remaining unpaid.
Section 6.09. Trustee May File Proofs of Claim.
The Trustee may 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 any other amounts due the Trustee under Section 7.06) and the Holders allowed in any judicial
proceedings relative to the Company (or any other obligor upon the Notes), its creditors or its property and, unless prohibited by law, shall be entitled and empowered to collect and receive any monies or other property payable or deliverable on any
such claims and to distribute the same after deduction of its charges and expenses to the extent that any such charges and expenses are not paid out of the estate in any such proceedings 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 7.06.
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 or reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceedings. All rights of action and
claims under this Indenture or the Notes may be prosecuted and enforced by the Trustee without the possession of any of the Notes thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its
own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders in respect of which such judgment has been recovered.
Section 6.10. Priorities.
Any money or property collected by the Trustee pursuant to this Article VI, and any money or other property distributable in respect of the
Company’s obligations under this Indenture after an Event of Default shall be applied in the following order:
FIRST:
to the Trustee (including any predecessor Trustee) for amounts due under Section 7.06;
SECOND: to Holders for
amounts due and unpaid on the affected Notes for principal, premium, if any, and interest (including Additional Interest, if any) as to each, ratably, without preference or priority of any kind, according to the amounts due and payable on the
affected Notes; and
THIRD: to the Company.
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 Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’
fees and expenses, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.07 or a suit by Holders of more than 10% in principal amount of the Notes of a series then outstanding.
Section 6.12. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Notes to exercise any right or remedy occurring upon an Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article VI or by law to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
ARTICLE VII
TRUSTEE
Section 7.01.
Duties of Trustee.
(a) If an Event of Default actually known to a Responsible Officer of the Trustee has occurred and is continuing,
the Trustee will exercise such of the rights and powers vested in it under this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of such
person’s own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, 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 but, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same 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, statements, opinions or conclusions stated therein).
(c) No provision of this Indenture shall be construed to relieve the Trustee from liability 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 clause
(b) or (d) of this Section 7.01;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the Trustee, 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 of the Holders of a majority in aggregate principal amount of the outstanding Notes of any series, determined as provided herein, relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred upon the Trustee, under this Indenture with respect to the Notes of such series.
(d) No
provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it.
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(e) Whether or not therein expressly so provided, every provision of this Indenture relating to
the conduct of, affecting the liability of, or affording protection to, the Trustee shall be subject to the provisions of this Section 7.01.
(f) The Trustee shall not be liable for interest or earnings on any money received by it except as the Trustee may agree in writing with the
Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by the law.
(g) The
Trustee shall not be responsible for the application of any money by any Paying Agent other than the Trustee.
Section 7.02.
Rights of Trustee.
Subject to Section 7.01:
(a) The Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document (whether in its original or facsimile form) believed in good faith by it to be
genuine and to have been signed or presented by the proper person. The Trustee need not investigate any fact or matter stated in the document.
(b) Any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Order and any resolution of the
Board of Directors may be sufficiently evidenced by a board resolution.
(c) Whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part,
conclusively rely upon an Officer’s Certificate.
(d) The Trustee may execute any of the trusts or power hereunder or perform any
duties hereunder either directly or by or through attorneys or agents and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent appointed with due care by it hereunder.
(e) The Trustee shall not be liable for any action taken, suffered, or omitted to be taken in good faith and believed by it to be authorized
or within the discretion or rights or powers conferred upon it by this Indenture.
(f) The Trustee may consult with counsel of its
selection, and the 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, omitted or suffered by it hereunder in good faith and in reliance thereon.
(g) 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 pursuant to this Indenture, unless such Holders shall have offered to the Trustee security or indemnity satisfactory to the Trustee against the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction.
(h) 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.
(i) The Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or 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 Company, personally or by agent or attorney at the sole
cost of the Company and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation.
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(j) The Trustee shall not be deemed to have notice or be charged with knowledge of any Default or
Event of Default unless written notice of such Default or Event of Default from the Company or any Holder is received by a Responsible Officer of the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Notes and this
Indenture.
(k) The Trustee may request that the Company deliver an Officer’s Certificate setting forth the names of individuals
and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officer’s Certificate may be signed by any person authorized to sign an Officer’s Certificate, including any person specified as
so authorized in any such certificate previously delivered and not superseded.
(l) Anything in this Indenture notwithstanding, in no
event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit), even if the Trustee has been advised as to the likelihood of such loss or
damage and regardless of the form of action.
(m) The Trustee shall not be responsible or liable for any failure or delay in the
performance of its obligations under this Indenture arising out of or caused, directly or indirectly, by circumstances beyond its control, including, without limitation, any provision of any law or regulation or any act of any Governmental
Authority, acts of God; earthquakes; fire; flood; terrorism; wars and other military disturbances; sabotage; epidemics; riots; interruptions; loss or malfunctions of utilities, computer (hardware or software) or communication services; accidents;
labor disputes; acts of civil or military authority and governmental action.
(n) The permissive right of the Trustee to take or refrain
from taking action hereunder shall not be construed as a duty.
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 make loans to, accept deposits from,
perform services for or otherwise deal with the Company or any Affiliate thereof with the same rights it would have if it were not Trustee. However, in the event that the Trustee acquires any conflicting interest within the meaning of
Section 310(b)(1) of the TIA, it must eliminate such conflict within 90 days or resign; provided, however, that there shall be excluded from the operation of TIA §310(b)(1) any indenture or indentures under which other
securities or certificates of interest of participation in other securities of the Company are outstanding if the requirements for such exclusion set forth in TIA §310(b)(1) are met, other than the fact that such indentures are not described
herein.
Any Agent may do the same with like rights. The Trustee is also subject to Section 7.09.
Section 7.04. Trustee’s Disclaimer.
The recitals contained herein and in the Notes, except the Trustee’s certificates of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to the validity, sufficiency or adequacy of this Indenture or of the Notes. The Trustee shall not be accountable for the use or
application by the Company of Notes or the proceeds thereof. The Trustee shall not be responsible to make any calculation with respect to any matter under this Indenture. The Trustee represents that it is duly authorized to execute and deliver this
Indenture, authenticate the Notes and perform its obligations hereunder. The Trustee shall have no duty to monitor or investigate the Company’s compliance with or the breach of, or cause to be performed or observed, any representation, warranty
or covenant made in this Indenture.
Section 7.05. Notice of Defaults.
Within 90 days after the occurrence thereof, and if known to the Trustee, the Trustee shall give to the Holders of the Notes of a series notice
of each Default or Event of Default with respect to the Notes of such series known to the Trustee, by transmitting such notice to Holders at their addresses as the same shall then appear on the register of the Notes kept by the Registrar, unless
such Default shall have been cured or waived before the giving of such notice. Except in the case of a Default or Event of Default in payment of the principal of, premium, if any, or interest on any of the Notes of a series when and as the same
shall become payable, or to make any sinking fund payment as to Notes of a series (including payments pursuant to a redemption or repurchase of the Notes pursuant to
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the provisions of this Indenture), the Trustee shall be protected in withholding such 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 Holders.
Section 7.06. Compensation and Indemnity.
(a) The Company shall pay to the Trustee and Agents from time to time such reasonable compensation for their services hereunder (which
compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust) as shall be agreed upon in writing. The Company shall reimburse the Trustee and Agents upon request for all reasonable
disbursements, expenses and advances incurred or made by them in connection with the Trustee’s duties under this Indenture, including the reasonable compensation, disbursements and expenses of the Trustee’s agents and external counsel,
except any such expense, disbursement or advance as may be attributable to its willful misconduct or negligence.
(b) The Company shall
fully indemnify each of the Trustee and their officers, agents and employees and any predecessor Trustee for, and hold each of them harmless against, any and all loss, damage, claim, liability or expense, including, without limitation, reasonable
and documented attorneys’ fees and expenses incurred by each of them in connection with the acceptance or performance of its duties under this Indenture including the reasonable and documented costs and expenses of defending itself against any
claim (whether asserted by the Company, or any Holder or any other Person) or liability in connection with the exercise or performance of any of its powers or duties hereunder (including, without limitation, settlement costs). The Trustee or Agent
shall notify the Company in writing promptly of any claim of which a Responsible Officer of the Trustee has received written notice at its Corporate Trust Office asserted against the Trustee or Agent for which it may seek indemnity; provided
that the failure by the Trustee or Agent to so notify the Company shall not relieve the Company of its obligations hereunder, except to the extent that the Company has been materially prejudiced thereby. The company need not pay for any settlement
made without its consent, which consent shall not be unreasonably withheld. In the event that a conflict of interest exists or potential harm to the Trustee’s business exists, the Trustee may have separate counsel, which counsel must be
reasonably acceptable to the Company and the Company shall pay the reasonable and documented fees and expenses of such counsel.
(c)
Notwithstanding the foregoing, the Company need not reimburse the Trustee for any expense or indemnify it against any loss or liability to have been incurred by the Trustee through its own willful misconduct or negligence.
(d) To secure the payment obligations of the Company in this Section 7.06, the Trustee shall have a lien prior to the Notes on all money
or property held or collected by the Trustee and such money or property held in trust to pay principal of and interest on particular Notes.
(e) The obligations of the Company under this Section 7.06 to compensate and indemnify the Trustee, Agents and each predecessor Trustee
and to pay or reimburse the Trustee, Agents and each predecessor Trustee for expenses, disbursements and advances shall be the liability of the Company and the lien provided for under this Section 7.06 and shall survive the resignation or
removal of the Trustee and the satisfaction, discharge or other termination of this Indenture for any reason, including any termination or rejection hereof under any Bankruptcy Law.
(f) In addition to, but without prejudice to its other rights under this Indenture, when the Trustee incurs expenses or renders services after
an Event of Default specified in Section 6.01(8) or Section 6.01(9) occurs, the expenses (including the reasonable charges and expenses of its counsel) and the compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
(g) For purposes of this Section 7.06, the term “Trustee” shall include any
predecessor Trustee; provided, however, that the negligence, willful misconduct or bad faith of any Trustee hereunder shall not affect the rights or any other Trustee hereunder.
Section 7.07. Replacement of Trustee.
(a) A resignation or removal of the Trustee and appointment of a successor Trustee will become effective only upon the successor Trustee’s
acceptance of appointment as provided in this Section 7.07.
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(b) The Trustee may resign at any time by so notifying the Company in writing no later than 15
Business Days prior to the date of the proposed resignation. The Holders of a majority in principal amount of the outstanding Notes may remove the Trustee by notifying the Company and the removed Trustee in writing and may appoint a successor
Trustee with the Company’s written consent, which consent shall not be unreasonably withheld. The Company may remove the Trustee at its election if:
(1) the Trustee fails to comply with Section 7.09;
(2) the Trustee is adjudged bankrupt or insolvent or an order for relief entered with respect to the Trustee under Bankruptcy
Law;
(3) a receiver or other public officer takes charge of the Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
(c) If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee.
(d) If a successor Trustee does not take office within 30 days after the retiring Trustee resigns or is removed, the
retiring Trustee, the Company or the Holders of at least 10% in principal amount of the outstanding Notes may petition at the expense of the Company any court of competent jurisdiction, in the case of the Trustee, for the appointment of a successor
Trustee.
(e) If the Trustee fails to comply with Section 7.09, any Holder may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(f) A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately following such delivery, the retiring Trustee shall, subject to the lien and its rights under Section 7.06, transfer all property held by it as Trustee to the successor
Trustee, 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. A successor Trustee shall transmit notice of its
succession to each Holder. Notwithstanding replacement of the Trustee pursuant to this Section 7.07, the lien and Company’s obligations under Section 7.06 shall continue for the benefit of the retiring Trustee.
Section 7.08. Successor Trustee by Consolidation, Merger, etc.
Any Person into which the Trustee or any successor to it in the trusts created by this Indenture shall be merged or converted, or any Person
with which it or any successor to it shall be consolidated, or any Person resulting from any merger, conversion or consolidation to which the Trustee or any such successor to it shall be a party, or any Person to which the Trustee or any successor
to it shall sell or otherwise transfer all or substantially all of the corporate trust business of the Trustee, shall be the successor Trustee under this Indenture without the execution or filing of any paper or any further act on the part of any of
the parties hereto; provided that such Person shall be otherwise qualified and eligible under this Article VII. In case at the time such successor to the Trustee shall succeed to the trusts created by this Indenture with respect to one or
more series of Notes, any of such Notes shall have been authenticated but not delivered by the Trustee then in office, any successor to such Trustee may adopt the certificate of authentication of any predecessor Trustee, and deliver such Notes so
authenticated; and in case at that time any of the Notes shall not have been authenticated, any successor to the Trustee may authenticate such Notes either in the name of any predecessor hereunder or in the name of the successor Trustee;
provided, however, that the right to adopt the certificate of authentication of any predecessor Trustee or authenticate Notes in the name of any predecessor Trustee shall apply only to its successor or successors by merger, conversion
or consolidation.
Section 7.09. Eligibility; Disqualification.
There will 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. The Trustee (together with its corporate parent) shall have a combined
capital and surplus of at least $100.0 million as set forth in the most recent applicable published annual report of condition.
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The Trustee shall not be deemed to have a conflict of interest under or in respect of its duties
under this Indenture except and to the extent provided for in Section 310(b)(1) of the TIA, applied as if this Indenture were qualified under such Act; provided, however, that there shall be excluded from the operation of TIA
§310(b)(1) any indenture or indentures under which other securities or certificates of interest or participation in other securities of the Company are outstanding if the requirements for such exclusion set forth in TIA §310(b)(1) are met,
other than the fact that such indentures are not described herein.
Section 7.10. Reports by Trustee to Holders.
If required by TIA § 313(a), within 60 days after June 15 of any year, commencing 2016, the Trustee shall transmit to each Holder a
brief report dated as of such date that complies with TIA § 313(a) (but if no event described in TIA § 313(a) has occurred within the twelve months preceding the reporting date, no report need be transmitted). The Trustee also shall comply
with TIA § 313(b)(2). The Trustee shall also transmit all reports as required by TIA § 313(c) and comply with TIA § 313(d).
Section 7.11. Preferential Collection of Claims Against Company.
The Trustee shall comply with 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 VIII
AMENDMENT, SUPPLEMENT AND WAIVER
Section 8.01. Without Consent of Holders.
The Company, the Guarantors and the Trustee may modify or amend this Indenture without the consent of any Holder of a Note of any series to:
(1) cure any ambiguity, defect, mistake or inconsistency in this Indenture;
(2) provide for uncertificated Notes in addition to or in place of certificated Notes;
(3) comply with the requirements of Section 4.10 or 5.01;
(4) evidence and provide for the acceptance of appointment by a successor Trustee;
(5) if required by the requirements of the Commission, comply with any requirements of the Commission in connection with the
qualification of this Indenture under the TIA;
(6) make any change that would provide any additional rights or benefits
to the Holders of the Notes of such series or that does not adversely affect in any material respect the legal rights under this Indenture of any such Holder;
(7) secure any series of Notes;
(8) provide for the issuance of Additional Notes in accordance with the limitations set forth in this Indenture;
(9) add covenants for the benefit of the Holders or to surrender any right or power conferred upon the Company or any
Guarantor;
(10) conform the text of this Indenture, the Notes or the Guarantees to any provision of the “Description
of Notes” contained in the Offering Memorandum; and
(11) allow any Guarantor to execute a supplemental indenture
and/or Guarantee with respect to the Notes.
Upon the written request of the Company accompanied by a board resolution of the Board of
Directors authorizing the execution of any such supplemental indenture and upon receipt by the Trustee of the documents described in Section 8.05, the Trustee shall join with the Company in the execution of such supplemental indenture unless
such supplemental indenture affects the Trustee’s own rights, duties or immunities under this Indenture, in which case the Trustee may, but shall not be obligated to, enter into such supplemental indenture.
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Section 8.02. With Consent of Holders.
(a) The Company, the Guarantors and the Trustee may modify or amend this Indenture as it applies to a series of Notes with the consent of the
Holders of a majority in aggregate principal amount of the then outstanding Notes of such series affected by the modification or amendment (including consents obtained in connection with a tender offer or exchange offer for Notes of such series),
and any past default or compliance with any provisions of this Indenture relating to a series of Notes may also be waived (except a default in the payment of principal, premium or interest and a default under clause (b) of this
Section 8.02) with the consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes of such series.
(b) However, no such modification or amendment may, without the consent of each Holder of Notes of a series affected thereby:
(1) extend the due date of the principal of, or any installment of principal of or interest on, the Notes of such series;
(2) reduce the principal amount of, or any premium or interest rate on, the Notes of such series;
(3) change the place or currency of payment of principal of, or any premium or interest on, the Notes of such series;
(4) reduce the amount payable upon the redemption of any Note of such series;
(5) impair the right to institute suit for the enforcement of any payment on or with respect to the Notes of such series after
the due date thereof; or
(6) reduce the percentage in principal amount of the then outstanding Notes of such series, the
consent of whose Holders is required for modification or amendment of this Indenture, for waiver of compliance with certain provisions of this Indenture or for waiver of certain defaults.
(c) The Holders of a majority of the principal amount of then outstanding Notes of any series may waive future compliance by the Company with
certain restrictive covenants of this Indenture applicable to such series of Notes. The Holders of at least a majority in principal amount of then outstanding Notes of a series may waive any past default under this Indenture with respect to such
series, except a failure by the Company to pay the principal of, or any premium or interest on, any Notes of such series or a provision that cannot be modified or amended without the consent of the Holders of all outstanding Notes of such series.
(d) In determining whether the Holders of the required principal amount of a series of Notes have concurred in any direction, notice,
waiver or consent, Notes owned by the Company or any Subsidiary of the Company, or by any Affiliate of the Company or any Subsidiary of the Company will be considered as though not outstanding, except that for the purposes of determining whether the
Trustee will be protected in conclusively relying on any such direction, notice, waiver or consent, only Notes that a Responsible Officer of the Trustee actually knows are so owned will be so disregarded.
(e) It is not necessary for the consent of the Holders under this Section 8.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it is sufficient if such consent approves the substance thereof.
After an amendment that requires the consent
of the Holders of the affected Notes becomes effective, the Company shall transmit to each registered Holder of the affected Notes at such Holder’s address appearing in the security register a notice briefly describing such amendment. However,
the failure to give such notice to all Holders of such Notes, or any defect therein, shall not impair or affect the validity of the amendment.
Upon the written request of the Company accompanied by a board resolution of the Board of Directors authorizing the execution of any such
supplemental indenture, and upon the receipt by the Trustee of evidence reasonably satisfactory to the Trustee of the consent of the Holders as aforesaid and upon receipt by the Trustee of
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the documents described in Section 8.05, the Trustee shall join with the Company in the execution of such supplemental indenture unless such supplemental indenture affects the Trustee’s
own rights, duties or immunities under this Indenture, in which case the Trustee may, but shall not be obligated to, enter into such supplemental indenture.
Section 8.03. Revocation and Effect of Consents.
After an amendment, supplement, waiver or other action becomes effective, a consent to it by a Holder of a Note is a continuing consent
conclusive and binding upon such Holder and every subsequent Holder of the same Note or portion thereof, and of any Note issued upon the transfer thereof or in exchange therefor or in place thereof, even if notation of the consent is not made on any
such Note. However, any such Holder of a Note or subsequent Holder of a Note may revoke the consent as to its Note if the Trustee receives written notice of revocation before the date the amendment, supplement or waiver becomes effective. An
amendment, supplement or waiver becomes effective in accordance with its terms and thereafter binds every Holder.
The Company may, but
shall not be obligated to, fix a record date for the purpose of determining the Holders entitled to consent to any amendment, supplement, or waiver. If a record date is fixed, then, notwithstanding the preceding paragraph, those Persons who were
Holders at such record date (or their duly designated proxies), and only such Persons, shall be entitled to consent to such amendment, supplement, or waiver or to revoke any consent previously given, whether or not such Persons continue to be
Holders after such record date. No such consent shall be valid or effective for more than 90 days after such record date unless the consent of the requisite number of Holders has been obtained.
Section 8.04. Notation on or Exchange of Notes.
If an amendment, supplement, or waiver changes the terms of a Note, the Trustee (in accordance with the specific written direction of the
Company) shall request the Holder of the Note (in accordance with the specific written direction of the Company) to deliver it to the Trustee. In such case, the Trustee shall place an appropriate notation on the Note about the changed terms and
return it to the Holder. Alternatively, if the Company or the Trustee so determines, the Company in exchange for the Note shall issue and the Trustee shall authenticate a new Note that reflects the changed terms. 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 8.05.
Trustee To Sign Amendments, etc.
The Trustee shall sign any amendment, supplement or waiver authorized pursuant to this Article VIII
if the amendment, supplement or waiver does not affect the rights, duties, liabilities or immunities of the Trustee. If it does affect the rights, duties, liabilities or immunities of the Trustee, the Trustee may, but need not, sign such amendment,
supplement or waiver. In signing or refusing to sign such amendment, supplement or waiver the Trustee shall be entitled to receive and, subject to Section 7.01, shall be fully protected in relying upon an Officer’s Certificate and an
Opinion of Counsel stating, in addition to the matters required by Section 11.02, that such amendment, supplement or waiver is authorized or permitted by this Indenture.
ARTICLE IX
SATISFACTION AND
DISCHARGE OF INDENTURE; DEFEASANCE
Section 9.01. Satisfaction and Discharge of Liability on Notes; Defeasance.
(a) This Indenture will be discharged and will cease to be of further effect with respect to any series of Notes (except as to rights of
registration of transfer or exchange of Notes and rights to receive principal of and premium, if any, and interest on such Notes) as to all outstanding Notes of such series issued hereunder when:
(1) either:
(A) all the Notes of such series that have been authenticated and delivered (except lost, stolen or destroyed Notes which have
been replaced or paid and Notes for whose payment money has been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from this trust) have been delivered to the Trustee for
cancellation, or
(B) all Notes of such series not delivered to the Trustee for cancellation otherwise (i) have
become due and payable, (ii) will become due and payable, or are to be called for redemption, within one year or (iii) have been called for redemption pursuant to the provisions described under Section 3.07 and, in any case, the
Company or any Guarantor has irrevocably deposited or caused to be deposited with the Trustee as trust funds, in trust solely for the benefit of the Holders of such Notes, U.S. legal tender, U.S. Government Obligations or a combination thereof, in
such amounts as will be sufficient (without consideration of any reinvestment of interest) to pay and discharge the entire Indebtedness (including all principal and accrued interest) on the Notes of such series not theretofore delivered to the
Trustee for cancellation,
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(2) the Company or any Guarantor has paid all sums payable by it under this
Indenture, and
(3) the Company has delivered irrevocable instructions to the Trustee to apply the deposited money toward
the payment of the Notes of such series at maturity or on the Redemption Date, as the case may be.
In addition, the Company must deliver
to the Trustee an Officer’s Certificate and an Opinion of Counsel stating that all conditions precedent to satisfaction and discharge have been complied with.
(b) Subject to clause (c) of this Section 9.01 and Section 9.02, the Company may, at its option and at any time, elect to have
its obligations and the obligations of the Guarantors discharged with respect to the outstanding Notes of a series (“Legal Defeasance”). Legal Defeasance means that the Company and the Guarantors shall be deemed to have paid and
discharged the entire indebtedness represented by the Notes of such series and the related Guarantees, and this Indenture shall cease to be of further effect as to all outstanding Notes of such series and the related Guarantees, except as to:
(1) the rights of Holders of such series of Notes issued under this Indenture to receive payments in respect of the principal
of, premium, if any, and interest on such Notes when such payments are due solely out of the trust created pursuant to this Indenture;
(2) the Company’s obligations with respect to such series Notes concerning issuing temporary Notes under
Section 2.11, registration of Notes under Section 2.04, mutilated, destroyed, lost or stolen Notes under Section 2.08, and the maintenance of an office or agency for payment under Section 2.04 and money for security payments held
in trust under Section 2.05;
(3) the rights, powers, trust, duties, and immunities of the Trustee, and the
Company’s obligation in connection therewith; and
(4) the applicable provisions of this Article IX.
In addition, the Company may, at its option and at any time, elect to have its obligations and the obligations of the Guarantors released with
respect to (A) their respective obligations under Sections 4.03, 4.07 through 4.11 with respect to the outstanding Notes of a series and (B) the operation of Sections 6.01(5), (6), (7) or (8) (only as such clauses (7) or
(8) apply to Significant Subsidiaries) (“Covenant Defeasance”) on and after the conditions in Section 9.02 with respect to Covenant Defeasance are satisfied, and thereafter any omission to comply with such obligations
shall not constitute a Default or Event of Default with respect to such Notes. The Company may exercise its Legal Defeasance option regardless of whether it previously exercised Covenant Defeasance.
(c) If the Company exercises its Legal Defeasance option, payment of the Notes of such series may not be accelerated because of an Event of
Default with respect thereto.
(d) Upon satisfaction of the conditions set forth herein and upon request of the Company, the Trustee shall
acknowledge in writing the discharge of those obligations that the Company terminates.
(e) Notwithstanding clauses (a) and
(b) of this Section 9.01, the Company’s obligations in Sections 2.04, 2.06, 2.07, 2.08, 7.06, 9.05 and 9.06 shall survive with respect to such series of Notes until such time as the Notes of such series have been paid in full.
Thereafter, the Company’s obligations in Sections 7.06, 9.05 and 9.06 shall survive.
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Section 9.02. Conditions to Defeasance.
In order to exercise either Legal Defeasance or Covenant Defeasance with respect to the Notes of any series:
(a) the Company must irrevocably deposit with the Trustee, as trust funds, in trust solely for the benefit of the Holders of the Notes of such
series U.S. legal tender, U.S. Government Obligations or a combination thereof, in such amounts as will be sufficient (without consideration of any reinvestment of interest) in the opinion of a nationally recognized firm of independent public
accountants selected by the Company, to pay the principal of, premium, if any, and interest on the Notes of such series on the stated date for payment or on the Redemption Date of the principal or installment of principal of, premium, if any, or
interest on such series of Notes;
(b) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the beneficial owners of Notes of such series will not recognize income, gain or loss for U.S. federal income tax purposes as a result of the 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, which opinion must be based either on a change in the applicable U.S. federal income tax laws or regulations occurring after the
date of the Offering Memorandum, or the Company having received a ruling from, or published by, the Internal Revenue Service to that effect;
(c) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the
beneficial owners of Notes of such series will not recognize income, gain or loss for U.S. federal income tax purposes solely 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 the Covenant Defeasance had not occurred;
(d) no Default or Event of Default
(other than a Default or Event of Default resulting from borrowing funds to be applied to make such deposit (and any similar concurrent deposit relating to other Indebtedness) or the granting of Liens in connection therewith) shall have occurred and
be continuing on the date of such deposit;
(e) the Company shall have delivered to the Trustee an Officer’s Certificate and an
Opinion of Counsel each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance; as the case may be, have been complied with.
Notwithstanding the foregoing provisions of this Section 9.02, the conditions set forth in the foregoing subsections (b), (c),
(d) and (e) need not be satisfied so long as, at the time the Company makes the deposit described in subsection (a), (i) no Default under clauses (1), (2), (8) and (9) under Section 6.01 has occurred and is continuing
on the date of such deposit and after giving effect thereto, and (ii) either (x) a notice of redemption has been transmitted providing for redemption of all the Notes of such series not more than 60 days after such transmission and the
requirements for such redemption shall have been complied with or (y) the Stated Maturity of the Notes of such series will occur within 60 days. If the conditions in the preceding sentence are satisfied, the Company shall be deemed to have
exercised its Covenant Defeasance option.
If the funds deposited with the Trustee to effect Covenant Defeasance are insufficient to pay
the principal of and interest on the Notes of the applicable series when due, then the Company’s obligations and the obligations of Guarantors under this Indenture will be revived with respect to such series and no such defeasance will be
deemed to have occurred.
Section 9.03. Deposited Money and U.S. Government Obligations To Be Held in Trust; Other Miscellaneous
Provisions.
All money and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee pursuant to
Section 9.02(a) in respect of the outstanding Notes of a series 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,
to the Holders of such Notes, of all sums due and to become due thereon in respect of principal, premium, if any, and accrued interest, but such money need not be segregated from other funds except to the extent required by law.
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The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on
or assessed against the U.S. Government Obligations deposited pursuant to Section 9.02(a) or the principal, premium, if any, 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 IX to the contrary notwithstanding, the Trustee shall deliver or pay to
the Company from time to time upon a request of the Company any money or Government Obligations held by it as provided in Section 9.02(a) which, in the opinion of a nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 9.04. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or U.S. Government Obligations in accordance with Section 9.01 by reason of
any legal proceeding or by reason of any order or judgment of any court or U.S. Governmental Authority enjoining, restraining or otherwise prohibiting such application, the Company’s obligations under this Indenture and the applicable Notes
shall be revived and reinstated as though no deposit had occurred pursuant to this Article IX until such time as the Trustee or Paying Agent is permitted to apply all such money or U.S. Government Obligations in accordance with Section 9.01;
provided that if the Company has made any payment of principal of, premium, if any, or accrued interest on any Notes because of the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Notes
to receive such payment from the money or U.S. Government Obligations held by the Trustee or Paying Agent.
Section 9.05. Moneys
Held by Paying Agent.
In connection with the satisfaction and discharge of this Indenture, all moneys then held by any Paying Agent
under the provisions of this Indenture shall, upon written demand of the Company, be paid to the Trustee, or if sufficient moneys have been deposited pursuant to Section 9.02(a), to the Company upon a request of the Company, and thereupon the
Paying Agent shall be released from all further liability with respect to such moneys.
Section 9.06. Moneys Held by Trustee.
Any moneys deposited with the Trustee or any Paying Agent or then held by the Company in trust for the payment of the principal of, or
premium, if any, or interest on any Note that are not applied but remain unclaimed by the Holder of such Note for two years after the date upon which the principal of, or premium, if any, or interest on such Note shall have respectively become due
and payable shall be repaid to the Company upon a request of the Company, or if such moneys are then held by the Company in trust, such moneys shall be released from such trust; and the Holder of such Note entitled to receive such payment shall
thereafter, as an unsecured general creditor, look only to the Company for the payment thereof, and all liability of the Trustee or the Paying Agent with respect to such trust money shall thereupon cease; provided that the Trustee or the
Paying Agent, before being required to make any such repayment, may, at the expense of the Company either transmit to each Holder affected, at the address shown in the register of the Notes maintained by the Registrar pursuant to Section 2.04,
or cause to be published once a week for two successive weeks, in a newspaper published in the English language, customarily published each Business Day and of general circulation in the City of New York, New York, a 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 transmission or publication, any unclaimed balance of such moneys then remaining will be repaid to the Company. After payment to the
Company or the release of any money held in trust by the Company, Holders entitled to the money must look only to the Company for payment as general creditors unless applicable abandoned property law designates another Person.
ARTICLE X
GUARANTEES
Section 10.01. Guarantee.
(a) Each Guarantor, hereby jointly and severally, absolutely, unconditionally and irrevocably guarantees the Notes and obligations of the
Company hereunder and thereunder, and guarantees to each Holder of a Note authenticated and delivered by the Trustee, and to the Trustee on behalf of such Holder, that (i) the principal of
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(and premium, if any) and interest on the Notes will be paid in full when due, whether at Stated Maturity, by acceleration or otherwise (including, without limitation, the amount that would
become due but for the operation of any automatic stay provision of any Bankruptcy Law), together with interest on the overdue principal, if any, and interest on any overdue interest, to the extent lawful, and all other obligations of the Company to
the Holders or the Trustee hereunder or thereunder will be paid in full or performed, all in accordance with the terms hereof and thereof; and (ii) in case of any extension of time of payment or renewal of any Notes or of any such other
obligations, the same will be 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, subject, however, in the case of clauses (i) and
(ii) above, to the limitations set forth in Section 10.03.
Each Guarantor hereby agrees that its obligations hereunder shall be
unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of Notes with respect to any provisions hereof or thereof,
any release of any other Guarantor, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a Guarantor.
(b) Each Guarantor hereby waives (to the extent permitted by law) the benefits of diligence, presentment, demand for payment, filing of claims
with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company or any other Person, protest, notice and all demands whatsoever and covenants that the Guarantee of such Guarantor
shall not be discharged as to either the 2018 Notes or the 2020 Notes, as the case may be, except by complete performance of the obligations contained in such Notes, this Indenture and such Guarantee. Each Guarantor acknowledges that the Guarantee
is a guarantee of payment and not of collection. Each of the Guarantors hereby agrees that, in the event of a default in payment of principal (or premium, if any) or interest on such Note, whether at its Stated Maturity, by acceleration, purchase or
otherwise, legal proceedings may be instituted by the Trustee on behalf of, or by, the Holder of such Note, subject to the terms and conditions set forth in this Indenture, directly against each of the Guarantors to enforce such Guarantor’s
Guarantee without first proceeding against the Company or any other Guarantor. Each Guarantor agrees that if, after the occurrence and during the continuance of an Event of Default, the Trustee or any of the Holders are prevented by applicable law
from exercising their respective rights to accelerate the maturity of the Notes, to collect interest on the Notes, or to enforce or exercise any other right or remedy with respect to the Notes, such Guarantor will pay to the Trustee for the account
of the Holders, upon demand therefor, the amount that would otherwise have been due and payable had such rights and remedies been permitted to be exercised by the Trustee or any of the Holders.
(c) If any Holder or the Trustee is required by any court or otherwise to return to the Company or any Guarantor, or any custodian, trustee,
liquidator or other similar official acting in relation to either the Company or any Guarantor, any amount paid by any of them to the Trustee or such Holder, the Guarantee of each of the Guarantors, to the extent theretofore discharged, shall be
reinstated in full force and effect. Each Guarantor further agrees that, as between each Guarantor, on the one hand, and the Holders and the Trustee, on the other hand, (x) subject to this Article X, the maturity of the obligations guaranteed
hereby may be accelerated as provided in Article VI for the purposes of the Guarantee of such Guarantor, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and
(y) in the event of any acceleration of such obligations as provided in Article VI, such obligations (whether or not due and payable) shall forthwith become due and payable by each Guarantor for the purpose of the Guarantee of such
Guarantor.
(d) Each Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or
against the Company for liquidation or reorganization, should the Company become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Company’s assets,
and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise
be restored or returned by any obligee on the Notes, whether as a “voidable preference”, “fraudulent transfer” or otherwise, all as though such payment or performance had not been made. In the event that any payment, or any part
thereof, is rescinded, reduced, restored or returned, the Notes shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.
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(e) To evidence its Guarantee, each Guarantor hereby agrees that a Notation of Guarantee
substantially in the form attached as Exhibit G hereto will be endorsed by an Officer of such Guarantor on each Note authenticated and delivered to the Trustee and that this Indenture or a supplemental indenture to this Indenture will be
executed on behalf of such Guarantor by one of its Officers. Each Guarantor hereby agrees that its Guarantee will remain in full force and effect notwithstanding any failure to endorse on each Note a Notation of Guarantee. The delivery of any Note
by the Trustee, after the authentication thereof hereunder, will be deemed to constitute due delivery of the Notation of Guarantee set forth in this Indenture by the Guarantors. If an Officer whose signature is on this Indenture or on the Notation
of Guarantee no longer holds that office at the time the Trustee authenticates the Note on which a Notation of Guarantee is endorsed, the Notation of Guarantee will be valid nevertheless.
Section 10.02. Severability.
In case any provision of any Guarantee 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 10.03. Limitation of Liability.
Each Guarantor and by its acceptance hereof each Holder confirms that it is the intention of all such parties that the guarantee by each such
Guarantor pursuant to its Guarantee not constitute a fraudulent transfer or conveyance for purposes of the Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law or the
provisions of its local law relating to fraudulent transfer or conveyance. To effectuate the foregoing intention, the Holders and each such Guarantor hereby irrevocably agree that the obligations of such Guarantor under its Guarantee shall be
limited to the maximum amount that will not, after giving effect to all other contingent and fixed liabilities of such Guarantor and after giving effect to any collections from or payments made by or on behalf of any other Guarantor in respect of
the obligations of such other Guarantor under its Guarantee or pursuant to this Article X, result in the obligations of such Guarantor under its Guarantee constituting such fraudulent transfer or conveyance.
Section 10.04. Contribution.
In order to provide for just and equitable contribution among the Guarantors, the Guarantors agree, inter se, that in the event any
payment or distribution is made by any Guarantor under a Guarantee, such Guarantor will be entitled to a contribution from any other Guarantor in a pro rata amount based on the net assets of each Guarantor determined in accordance with GAAP.
Section 10.05. Subrogation.
Each Guarantor shall be subrogated to all rights of Holders against the Company in respect of any amounts paid by any Guarantor pursuant to the
provisions of Section 10.01; provided, however, that if an Event of Default has occurred and is continuing, no Guarantor shall be entitled to enforce or receive any payments arising out of, or based upon, such right of subrogation
until all amounts then due and payable by the Company under this Indenture or the Notes shall have been paid in full.
Section 10.06. Reinstatement.
Each Guarantor hereby agrees (and each Person who becomes a Guarantor shall agree) that the Guarantee provided for in Section 10.01 shall
continue to be effective or be reinstated, as the case may be, if at any time, payment, or any part thereof, of any obligations or interest thereon is rescinded or must otherwise be restored by a Holder to the Company upon the bankruptcy or
insolvency of the Company or any Guarantor.
Section 10.07. Release of a Guarantor.
(a) Subject to Section 10.07(b) with respect to the Guarantee issued by Mylan Inc. under this Indenture on the Issue Date, any Guarantee
issued by any Guarantor under this Indenture shall be automatically and unconditionally released and discharged upon:
(1)
a sale or disposition of such Guarantor in a transaction that complies with this Indenture such that such Guarantor ceases to be a Subsidiary of the Company;
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(2) Legal Defeasance or Covenant Defeasance or if the Company’s obligations
under this Indenture are discharged in accordance with the terms of this Indenture; or
(3) the earliest to occur of
(A) the release of such Guarantor’s Guarantee under all applicable Triggering Indebtedness, (B) such Guarantor no longer having any obligations in respect of all applicable Triggering Indebtedness and (C) the issuer(s) and/or
borrower(s) of the applicable Triggering Indebtedness no longer having any obligations with respect to such Triggering Indebtedness.
(b)
The Guarantee issued by Mylan Inc. under this Indenture on the Issue Date shall be automatically and unconditionally released and discharged upon:
(1) a sale or disposition of Mylan Inc. in a transaction that complies with this Indenture such that Mylan Inc. ceases to be a
Subsidiary of the Company;
(2) Legal Defeasance or Covenant Defeasance or if the Company’s obligations under this
Indenture are discharged in accordance with the terms of this Indenture; or
(3) the earlier to occur of (1) the
release of the Company’s Guarantee under all applicable Mylan Inc. Debt and (2) Mylan Inc. no longer having any obligations in respect of any Mylan Inc. Debt.
Section 10.08. Benefits Acknowledged.
Each Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by this Indenture
and that its respective Guarantee is knowingly made in contemplation of such benefits.
ARTICLE XI
MISCELLANEOUS
Section 11.01. Notices.
Except for notice or communications to Holders, any notice or communication shall be given in writing and is duly given when received if
delivered in person, when receipt is acknowledged if sent by facsimile, on the next Business Day if timely delivered by a nationally recognized courier service that guarantees overnight delivery or two Business Days after deposit if mailed by
first-class mail, postage prepaid, addressed as follows:
If to the Company and/or any Guarantor:
Mylan N.V.
c/o Mylan Inc.
1000 Mylan Boulevard
Canonsburg, PA 15317
Attn:
Bradley Wideman, Esq., Vice President, Associate General Counsel, Securities and Assistant Secretary
Fax: (724) 514-1871
Email: bradley.wideman@mylan.com
With a copy (which shall not constitute notice) to:
Cravath, Swaine & Moore LLP
Worldwide Plaza
825 Eighth
Avenue
New York, NY 10019-7475
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William V. Fogg |
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Johnny G. Skumpija |
Fax: (212) 474-3700
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wfogg@cravath.com |
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jskumpija@cravath.com |
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If to the Trustee:
Mailing Address:
The Bank of
New York Mellon, N.A.
500 Ross Street, 12th Floor
Pittsburgh, PA 15262
Attn:
Corp Trust Admin - Mylan
Fax: (412) 234-7535
Email: leslie.lockhart@bnymellon.com
Such notices or communications shall be effective when actually received and shall be sufficiently given if so given within the time
prescribed in this Indenture.
The Company, the Guarantors or the Trustee by written notice to the others may designate additional or
different addresses for subsequent notices or communications.
The Trustee shall have the right, but shall not be required, to rely upon
and comply with instructions and directions sent by email, facsimile and other similar unsecured electronic methods by persons believed by the Trustee to be authorized to give instructions and directions on behalf of the Company. The Trustee shall
have no duty or obligation to verify or confirm that the person who sent such instructions or directions is, in fact, a person authorized to give instructions on behalf of the Company; and the Trustee shall have no liability for any losses,
liabilities, costs or expenses incurred or sustained by the Company as a result of such reliance upon or compliance with such instructions or directions, provided that such reliance was in good faith. The Company agrees to assume all risks
arising out of the use of such electronic methods to submit instructions and directions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, and all the risk of interception and misuse by third
parties.
Any notice or communication transmitted to a Holder shall be transmitted to him or her at his or her address shown on the
register kept by the Registrar.
Failure to transmit 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 to a Holder is transmitted in the manner provided above, it shall be deemed duly given, whether or not the addressee receives it.
If the Company transmits a notice or communication to Holders, it will transmit a copy to the Trustee and each Agent at the same time.
In case by reason of the suspension of regular mail service, or by reason of any other cause, it shall be impossible to mail any notice as
required by this Indenture, then such method of notification as shall be made with the approval of the Trustee shall constitute a sufficient mailing of such notice.
Section 11.02. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take any action under this Indenture (other than the authentication and
delivery of the Initial Notes), if so requested by the Trustee, the Company shall furnish to the Trustee:
(1) an
Officer’s Certificate (which must include the statements set forth in Section 11.03) stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been
complied with; and
(2) an Opinion of Counsel (which must include the statements set forth in Section 11.03) stating
that, in the opinion of such counsel, all such conditions precedent have been complied with.
Section 11.03. Statements Required
in Certificate and Opinion.
Each certificate or opinion with respect to compliance with a condition or covenant provided for in this
Indenture must include:
(1) a statement that the Person making such certificate or opinion has read such covenant or
condition;
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(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement
that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such Person, such condition or covenant has been complied with.
Section 11.04. Communications by Holders with Other Holders.
Holders may communicate pursuant to TIA § 312(b) with other Holders with respect to their rights under this Indenture or the Notes. The
Company, the Trustee, the Registrar and anyone else shall have the protection of TIA § 312(c).
Section 11.05. Rules by
Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar or Paying Agent may
make reasonable rules and set reasonable requirements for its functions.
Section 11.06. No Personal Liability of Directors,
Officers, Employees and Stockholders.
No director, officer, employee or stockholder of the Company or any of the Guarantors, past,
present or future, will have any liability for any of the Company’s or such Guarantor’s obligations under the Notes or this Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each
Holder of Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.
Section 11.07. Governing Law; Waiver of Jury Trial; Jurisdiction.
THE INTERNAL LAW OF THE STATE OF NEW YORK (INCLUDING, WITHOUT LIMITATION, SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW OR ANY
SUCCESSOR TO SUCH STATUTE) WILL GOVERN AND BE USED TO CONSTRUE THIS INDENTURE, THE NOTES AND THE GUARANTEES WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION
WOULD BE REQUIRED THEREBY.
EACH PARTY HEREBY, AND EACH HOLDER OF A NOTE BY ITS ACCEPTANCE THEREOF, WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, OR IN CONNECTION WITH THIS INDENTURE.
ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS INDENTURE AND ANY ACTION FOR ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF MAY BE BROUGHT
IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, IN EACH CASE RESIDING IN THE COUNTY OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS INDENTURE, EACH OF THE PARTIES HERETO HEREBY
ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS AND APPELLATE COURTS FROM ANY THEREOF. THE COMPANY HERETO IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF
ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO THE COMPANY AT ITS ADDRESS REFERRED TO IN SECTION 11.01. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY DO SO UNDER APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
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LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS INDENTURE BROUGHT IN THE COURTS REFERRED TO ABOVE AND TO THE FULLEST EXTENT IT MAY DO SO
UNDER APPLICABLE LAW HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. NOTHING HEREIN SHALL AFFECT THE RIGHT
OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED IN ANY OTHER JURISDICTION.
Section 11.08. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other indenture, loan or debt agreement of the Company or its Subsidiaries or of any other
Person. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.
Section 11.09. Successors.
All agreements of the Company in this Indenture and the Notes will bind its successors. All agreements of the Trustee in this
Indenture will bind its successors. All agreements of each Guarantor in this Indenture will bind its successors, except as otherwise provided in Section 10.07.
Section 11.10. Separability.
In case any provision in this Indenture or in the Notes is invalid, illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions will not in any way be affected or impaired thereby.
Section 11.11. Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each signed copy will be an original, but all of them together represent the same
agreement. The exchange of copies of this Indenture and of signature pages by facsimile or electronic format (i.e., “pdf” or “tif”) transmission shall constitute effective execution and delivery of this Indenture as to the
parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or electronic format (i.e., “pdf” or “tif”) shall be deemed to be their original
signatures for all purposes.
Section 11.12. Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and Headings of the Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part of this Indenture and will in no way modify or restrict any of the terms or provisions hereof.
Section 11.13. Benefits of Indenture.
Nothing in this Indenture expressed and nothing that may be implied from any of the provisions hereof is intended, or shall be construed, to
confer upon, or to give to, any Person other than the parties hereto and their successors and the Holders of the Notes any benefit or any right, remedy or claim under or by reason of this Indenture or any covenant, condition, stipulation, promise or
agreement hereof, and all covenants, conditions, stipulations, promises and agreements in this Indenture contained shall be for the sole and exclusive benefit of the parties hereto and their successors and of the Holders of the Notes.
Section 11.14. Appointment of Agent for Service.
Each of the Company and the Guarantors hereby irrevocably appoints Corporation Service Company, with offices at 80 State Street, Albany, New
York 12207-2543, as its agent for service of process in any Related Proceeding and agrees that service of process in any such Related Proceeding may be made upon it at the office of such agent. Each of the Company and the Guarantors waives, to the
fullest extent permitted by law, any other requirements of or objections to personal jurisdiction with respect thereto. Each of the Company and the Guarantors represents and warrants that such agent has agreed to act as the its agent for service of
process, and each of the Company and the Guarantors 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.
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[Signatures on following page]
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IN WITNESS WHEREOF, the parties have caused this Indenture to be duly executed as of the date
first written above.
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| MYLAN N.V. |
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/s/ Colleen Ostrowski |
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Name: |
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Colleen Ostrowski |
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Title: |
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Senior Vice President and Treasurer |
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| MYLAN INC. |
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/s/ Colleen Ostrowski |
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Name: |
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Colleen Ostrowski |
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Title: |
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Senior Vice President and Treasurer |
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| THE BANK OF NEW YORK MELLON, as
Trustee |
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/s/ Laurence J. O’Brien |
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Name: |
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Laurence J. O’Brien |
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Title: |
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Vice President |
[Indenture]
EXHIBIT A-1
CUSIP No.
MYLAN N.V.
3.000% SENIOR NOTE DUE 2018
Mylan N.V., a public limited liability company (naamloze vennootschap) incorporated and existing under the laws of the
Netherlands (the “Company”), for value received, promises to pay to CEDE & CO. or registered assigns the principal sum of $ , on December 15, 2018.
Interest Payment Dates: June 15 and December 15. Record Dates: June 1 and December 1.
Reference is made to the further provisions of this Note contained herein, which will for all purposes have the same effect as if set forth at
this place.
IN WITNESS WHEREOF, the Company has caused this Note to be signed manually or by facsimile by one of its duly authorized
officers.
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| MYLAN N.V. |
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Name: |
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Title: |
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A-1-1
Certificate of Authentication
This is one of the 3.000% Senior Notes due 2018 referred to in the within-mentioned Indenture.
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| THE BANK OF NEW YORK MELLON, as
Trustee |
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Authorized Signatory |
Dated:
A-1-2
[FORM OF REVERSE OF NOTE]
MYLAN N.V.
3.000% SENIOR NOTE DUE
2018
(1) Interest. Mylan N.V., a public limited liability company (naamloze vennootschap) incorporated and existing under
the laws of the Netherlands, as issuer (the “Company”), promises to pay, until the principal hereof is paid or made available for payment, interest on the principal amount set forth on the face hereof at a rate of 3.000% per
annum. Interest on the 3.000% Senior Notes due 2018 (the “Notes”) will accrue from and including the most recent date to which interest has been paid or, if no interest has been paid, from and including December 9, 2015 to but
excluding the date on which interest is paid. Interest shall be payable in arrears on each June 15 and December 15, commencing on June 15, 2016. Interest will be computed on the basis of a 360-day year comprised of twelve 30-day
months. The Company shall pay interest on overdue principal and on overdue interest (to the full extent permitted by law) at the rate borne by the Notes.
(2) Method of Payment. The Company will pay interest to those persons who were holders of record at the close of business on the
June 1 and December 1, as the case may be, immediately preceding each Interest Payment Date. Interest on the Notes will accrue from the date of original issuance or, if interest has already been paid, from the date it was most recently
paid. If any interest payment date for the Notes falls on a day that is not a Business Day, then payment of interest may be made on the next succeeding Business Day and no interest shall accrue because of such delayed payment.
(3) Paying Agent and Registrar. Initially, The Bank of New York Mellon (the “Trustee”) will act as a Paying Agent and
Registrar. The Company may change any Paying Agent or Registrar without notice to the Holders. The Company or any of its Subsidiaries may act as Paying Agent or Registrar.
(4) Indenture. The Company issued the Notes under an Indenture dated as of December 9, 2015 (the “Indenture”)
among the Company, the Guarantors and the Trustee. This is one of an issue of Notes of the Company issued, or to be issued, under the Indenture. The terms of the Notes include those stated in the Indenture. The Notes are subject to all such terms,
and Holders are referred to the Indenture for a statement of them. Capitalized and certain other terms used and not otherwise defined herein have the meanings set forth in the Indenture.
(5) Optional Redemption. At any time and from time to time prior to the Maturity Date, the Company may redeem the Notes, in whole or in
part, upon not less than 30 nor more than 60 days’ prior notice, at a price equal to the greater of:
(1) 100% of the
aggregate principal amount of any Notes being redeemed, and
(2) the sum of the present values of the remaining scheduled
payments of principal and interest on the Notes being redeemed that would be due to the Maturity Date, not including unpaid interest accrued to, but excluding, the Redemption Date, discounted to the Redemption Date on a semi-annual basis (assuming a
360-day year consisting of twelve 30-day months) at the Treasury Rate plus 30 basis points with respect to any Notes,
plus, in each case,
unpaid interest on the Notes being redeemed accrued to , but excluding, the Redemption Date.
The Company will, however, pay the interest
installment due on any Interest Payment Date that occurs on or before a Redemption Date to the holders of the affected Notes as of the close of business on the applicable record date.
“Treasury Rate” means, with respect to any Redemption Date, the rate per year equal to the semiannual equivalent yield
to maturity or interpolated (on a day count basis) of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption
Date.
If (a) a Payor becomes or will become obligated to pay Additional Amounts with respect to any Notes of any series
pursuant to Section 4.13 of the Indenture, as a result of any change in, or amendment to, the laws or
A-1-3
regulations of a Relevant Jurisdiction, or any change in the official interpretation or application of the laws or regulations of a Relevant Jurisdiction, which change or amendment becomes
effective after the date of the Offering Memorandum (or, if the applicable Relevant Jurisdiction became a Relevant Jurisdiction after the date of the Offering Memorandum, such later date), and (b) such obligation cannot be avoided by the
Company taking reasonable measures available to the Company, the Company may at its option, having given not less than 30 days notice to the Holders of such Notes (which notice shall be irrevocable), redeem all, but not a portion of, Notes of the
applicable series in accordance with Section 3.09 of the Indenture.
(6) Redemption Procedures. If the Company redeems less
than all of the Notes at any time, the Trustee will select Notes by lot on a pro rata basis (or, in the case of Global Notes, based on a method that most nearly approximates a pro rata selection as the Trustee deems fair and
appropriate) unless an alternative selection method is otherwise required by law or applicable stock exchange or depositary requirements. The Company will redeem Notes of $2,000 or less in whole and not in part. For all purposes of the Indenture,
unless the context otherwise requires, provisions of the Indenture that apply to Notes called for redemption also apply to portions of Notes called for redemption.
(7) Notice of Redemption. Notices of redemption shall be transmitted at least 30 but not more than 60 days before the Redemption Date
to each Holder of Notes to be redeemed at its registered address. If any Note is to be redeemed in part only, the notice of redemption that relates to that Note will state the portion of the principal amount thereof that is to be redeemed.
(8) Denominations, Transfer, Exchange. The Notes shall be issuable only in fully registered form without coupons in denominations of
$2,000 and any integral multiple of $1,000 in excess thereof. A Holder may transfer or exchange Notes in accordance with the Indenture.
(9) Persons Deemed Owners. The Depositary may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner of the Global Note for all purposes whatsoever.
(10) Unclaimed Money. If money for the payment of principal or
interest remains unclaimed for two years, the Trustee or Paying Agent will pay the money back to the Company at its request or, if such money is then held by the Company in trust, such money shall be released from such trust. After that, Holders
entitled to the money must look only to the Company for payment as general creditors unless applicable abandoned property law designates another Person.
(11) Amendment, Supplement, Waiver, Etc. The Company, the Guarantors and the Trustee may modify or amend the Indenture without the
consent of any Holder to, among other things, cure any ambiguity, defect, mistake or inconsistency in the Indenture and make any change that would provide any additional rights or benefits to the Holders or that does not adversely affect the legal
rights under the Indenture of the Holder. Other amendments and modifications of the Indenture or the Notes may be made by the Company and the Trustee with the consent of the Holders of a majority of the aggregate principal amount of the outstanding
Notes, subject to certain exceptions requiring the consent of each of the Holders of the Notes to be affected.
(12) Purchase of Notes
Upon a Change of Control Repurchase Event. If a Change of Control Repurchase Event occurs, each Holder of Notes will have the right to require that the Company purchase all or any part (in denominations of $2,000 and integral multiples of $1,000
in excess thereof) of such Holder’s Notes pursuant to a Change of Control offer (a “Change of Control Offer”) on the terms set forth in the Indenture, except that the Company shall not be obligated to repurchase the Notes
pursuant to Section 4.08 of the Indenture in the event that the Company has exercised the right to redeem all of the Notes as described in Section 3.07(a) of the Indenture. In the Change of Control Offer, the Company will offer to purchase
all of the Notes at a purchase price in cash in an amount equal to 101% of the principal amount of the Notes, plus accrued but unpaid interest, if any, to (but not including) the date of purchase (subject to the rights of Holders of record on
relevant record dates to receive interest due on the relevant Interest Payment Date if the Notes have not been redeemed prior to such record date).
(13) Successor Entity. When a successor entity assumes all the obligations of its predecessor under the Notes and the Indenture and the
transaction complies with the terms of Article V of the Indenture, the predecessor entity will, except as provided in Article V, be released from those obligations.
A-1-4
(14) Defaults and Remedies. Events of Default are set forth in the Indenture. Subject to
certain limitations in the Indenture, if an Event of Default with respect to the Notes (other than an Event of Default specified in Sections 6.01(8) and 6.01(9) of the Indenture with respect to the Company) shall have occurred and be continuing, the
Trustee or the Holders of at least 25% in outstanding principal amount of the Notes may declare to be immediately due and payable the principal amount of all Notes then outstanding, plus accrued but unpaid interest to the date of acceleration. If an
Event of Default specified in Sections 6.01(8) and 6.01(9) of the Indenture with respect to the Company shall occur, such amount with respect to all the Notes shall become automatically due and payable immediately without any further action or
notice. The Trustee shall be under no obligation to exercise any of its rights or powers under the Indenture at the request or direction of any of the Holders, unless such Holders have offered to the Trustee security or indemnity satisfactory to the
Trustee. Except in the case of a Default or Event of Default in payment of the principal of, premium, if any, or interest on any Note (including payments pursuant to a redemption or repurchase of the Notes pursuant to the provisions of the
Indenture), 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 Holders.
(15) Trustee Dealings with Company. The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and
may make loans to, accept deposits from, perform services for or otherwise deal with the Company or any Affiliate thereof with the same rights it would have if it were not Trustee.
(16) No Recourse Against Others. No director, officer, employee or stockholder of the Company or any of the Guarantors will have any
liability for any of the Company’s or such Guarantor’s obligations under the Notes or the Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of Notes by accepting a Note
waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.
(17)
Discharge. The Company’s obligations pursuant to the Indenture will be discharged, except for obligations pursuant to certain sections thereof, subject to the terms of the Indenture, upon the payment or cancellation of all the Notes or
upon the irrevocable deposit with the Trustee of United States dollars or U.S. Government Obligations sufficient to pay when due principal of and interest on the Notes at maturity or redemption, as the case may be.
(18) Guarantees. The Company’s obligations under the Notes are jointly and severally, fully and unconditionally guaranteed, to the
extent set forth in the Indenture, by each of the Guarantors.
(19) Authentication. This Note shall not be valid until the Trustee
manually signs the certificate of authentication on this Note.
(20) Governing Law. THE INTERNAL LAW OF THE STATE OF NEW YORK WILL
GOVERN AND BE USED TO CONSTRUE THIS NOTE WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
(21) Abbreviations. Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common),
TENANT (= 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).
The Company will furnish to any Holder upon written request and without charge a copy of the Indenture. Requests may be made to:
Mylan N.V.
c/o Mylan Inc.
1000 Mylan Boulevard
Canonsburg,
PA 15317
Attn: Bradley Wideman, Esq., Vice President, Associate General Counsel,
Securities and Assistant Secretary
Fax: (724) 514-1871
Email:
bradley.wideman@mylan.com
A-1-5
With a copy (which shall not constitute notice) to:
Cravath, Swaine & Moore LLP
Worldwide Plaza
825 Eighth
Avenue
New York, NY 10019-7475
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William V. Fogg |
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Johnny G. Skumpija |
Fax: (212) 474-3700
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wfogg@cravath.com
jskumpija@cravath.com |
A-1-6
ASSIGNMENT
I or we assign and transfer this Note to:
(Insert assignee’s social security
or tax I.D. number)
(Print or type name, address and zip code of assignee)
and irrevocably appoint:
as Agent to transfer this Note on the
books of the Company. The Agent may substitute another to act for him.
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(Sign exactly as your name appears on the face of this Note) |
SIGNATURE GUARANTEE
Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Registrar, which requirements
include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all
in accordance with the Securities Exchange Act of 1934, as amended.
A-1-7
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER RESTRICTED SECURITIES
This certificate relates to $ principal amount of Notes held in definitive form by the undersigned.
The undersigned has requested the Trustee by written order to exchange or register the transfer of a Note or Notes.
In connection with any transfer of any of the Notes evidenced by this certificate occurring prior to the expiration of the period referred to in Rule 144
under the Securities Act, the undersigned confirms that such Notes are being transferred in accordance with its terms:
CHECK ONE BOX BELOW
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to the Company; or |
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to the Registrar for registration in the name of the Holder, without transfer; or |
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pursuant to an effective registration statement under the Securities Act of 1933; or |
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inside the United States to a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act of 1933) that purchases for its own account or for the account of a qualified institutional buyer to whom
notice is given that such transfer is being made in reliance on Rule 144A, in each case pursuant to and in compliance with Rule 144A under the Securities Act of 1933; or |
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outside the United States in an offshore transaction within the meaning of Regulation S under the Securities Act in compliance with Rule 904 under the Securities Act of 1933; or |
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to an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act of 1933) that has furnished to the Trustee a signed letter containing certain representations and
agreements; or |
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pursuant to another available exemption from registration provided by Rule 144 under the Securities Act of 1933. |
Unless one of the boxes is checked, the Trustee will refuse to register any of the Notes evidenced by this certificate
in the name of any Person other than the registered holder thereof; provided, however, that if box (5), (6) or (7) is checked, the Trustee may require, prior to registering any such transfer of the Notes, such legal opinions,
certifications and other information as the Company has reasonably requested 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 of
1933.
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Signature must be guaranteed by a participant in a recognized signature guaranty medallion program or other signature guarantor acceptable to the Trustee |
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Signature of Signature Guarantee |
A-1-8
TO BE COMPLETED BY PURCHASER IF (4) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Note for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act of 1933, and is aware that the sale to it is being made in reliance on Rule 144A
and acknowledges that it has received such information regarding the Company as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the
undersigned’s foregoing representations in order to claim the exemption from registration provided by Rule 144A.
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NOTICE: To be executed by an executive officer |
A-1-9
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant to Section 4.08 (Change of Control) of the Indenture, check the
box:
If you want to elect to have only part of this Note purchased by the
Company pursuant to Section 4.08 of the Indenture, state the principal amount (in denominations of $2,000 and integral multiples of $1,000 in excess thereof):
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Your Signature: |
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(Sign exactly as your name appears on the other side of the Note) |
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Signature must be guaranteed by a participant in a recognized signature guaranty medallion program or other signature guarantor acceptable to the Trustee |
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A-1-10
[TO BE ATTACHED TO GLOBAL NOTES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The following increases or decreases in this Global Note have been made:
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| Date of Exchange |
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Amount of
decrease in
Principal Amount
of this Global Note |
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Amount of increase
in Principal
Amount of this
Global Note |
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Principal Amount
of this Global Note
following such
decrease or
increase |
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Signature of
authorized
signatory of
Trustee or Notes
Custodian |
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A-1-11
EXHIBIT A-2
CUSIP No.
MYLAN N.V.
3.750% SENIOR NOTE DUE 2020
Mylan N.V., a public limited liability company (naamloze vennootschap) incorporated and existing under the laws of the
Netherlands (the “Company”), for value received, promises to pay to CEDE & CO. or registered assigns the principal sum of $ , on December 15, 2020.
Interest Payment Dates: June 15 and December 15. Record Dates: June 1 and December 1.
Reference is made to the further provisions of this Note contained herein, which will for all purposes have the same effect as if set forth at
this place.
IN WITNESS WHEREOF, the Company has caused this Note to be signed manually or by facsimile by one of its duly authorized
officers.
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| MYLAN N.V. |
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| By: |
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Name: |
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Title: |
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A-2-1
Certificate of Authentication
This is one of the 3.750% Senior Notes due 2020 referred to in the within-mentioned Indenture.
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| THE BANK OF NEW YORK MELLON, |
| as Trustee |
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| By: |
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Authorized Signatory |
Dated:
A-2-2
[FORM OF REVERSE OF NOTE]
MYLAN N.V.
3.750% SENIOR NOTE DUE
2020
(1) Interest. Mylan N.V., a public limited liability company (naamloze vennootschap) incorporated and existing under
the laws of the Netherlands, as issuer (the “Company”), promises to pay, until the principal hereof is paid or made available for payment, interest on the principal amount set forth on the face hereof at a rate of 3.750% per
annum. Interest on the 3.750% Senior Notes due 2020 (the “Notes”) will accrue from and including the most recent date to which interest has been paid or, if no interest has been paid, from and including December 9, 2015 to but
excluding the date on which interest is paid. Interest shall be payable in arrears on each June 15 and December 15, commencing on June 15, 2016. Interest will be computed on the basis of a 360-day year comprised of twelve 30-day
months. The Company shall pay interest on overdue principal and on overdue interest (to the full extent permitted by law) at the rate borne by the Notes.
(2) Method of Payment. The Company will pay interest to those persons who were holders of record at the close of business on the
June 1 and December 1, as the case may be, immediately preceding each Interest Payment Date. Interest on the Notes will accrue from the date of original issuance or, if interest has already been paid, from the date it was most recently
paid. If any interest payment date for the Notes falls on a day that is not a Business Day, then payment of interest may be made on the next succeeding Business Day and no interest shall accrue because of such delayed payment.
(3) Paying Agent and Registrar. Initially, The Bank of New York Mellon (the “Trustee”) will act as a Paying Agent and
Registrar. The Company may change any Paying Agent or Registrar without notice to the Holders. The Company or any of its Subsidiaries may act as Paying Agent or Registrar.
(4) Indenture. The Company issued the Notes under an Indenture dated as of December 9, 2015 (the “Indenture”)
among the Company, the Guarantors and the Trustee. This is one of an issue of Notes of the Company issued, or to be issued, under the Indenture. The terms of the Notes include those stated in the Indenture. The Notes are subject to all such terms,
and Holders are referred to the Indenture for a statement of them. Capitalized and certain other terms used and not otherwise defined herein have the meanings set forth in the Indenture.
(5) Optional Redemption. At any time and from time to time prior to the date that is one month prior to the Maturity Date, the Company
may redeem the Notes, in whole or in part, upon not less than 30 nor more than 60 days’ prior notice, at a price equal to the greater of:
(1) 100% of the aggregate principal amount of any Notes being redeemed, and
(2) the sum of the present values of the remaining scheduled payments of principal and interest on the Notes being redeemed
that would be due if the Notes matured on the date that is one month prior to the Maturity Date, not including unpaid interest accrued to, but excluding, the Redemption Date, discounted to the Redemption Date on a semi-annual basis (assuming a
360-day year consisting of twelve 30-day months) at the Treasury Rate plus 35 basis points with respect to any Notes,
plus, in each case,
unpaid interest on the Notes being redeemed accrued to, but excluding, the Redemption Date.
On or after the date that is one month prior
to the Maturity Date, the Notes will be redeemable in whole at any time or in part, from time to time, at the option of the Company, upon at least 15 days’ but no more than 60 days’ prior notice, at a price equal to 100% of the principal
amount of the Notes to be redeemed plus accrued and unpaid interest thereon to, but excluding, the Redemption Date.
The Company will,
however, pay the interest installment due on any Interest Payment Date that occurs on or before a Redemption Date to the holders of the affected Notes as of the close of business on the applicable record date.
“Treasury Rate” means, with respect to any Redemption Date, the rate per year equal to the semiannual equivalent yield
to maturity or interpolated (on a day count basis) of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption
Date.
A-2-3
If (a) a Payor becomes or will become obligated to pay Additional Amounts with respect to
any Notes of any series pursuant to Section 4.13 of the Indenture, as a result of any change in, or amendment to, the laws or regulations of a Relevant Jurisdiction, or any change in the official interpretation or application of the laws or
regulations of a Relevant Jurisdiction, which change or amendment becomes effective after the date of the Offering Memorandum (or, if the applicable Relevant Jurisdiction became a Relevant Jurisdiction after the date of the Offering Memorandum, such
later date), and (b) such obligation cannot be avoided by the Company taking reasonable measures available to the Company, the Company may at its option, having given not less than 30 days notice to the Holders of such Notes (which notice shall
be irrevocable), redeem all, but not a portion of, Notes of the applicable series in accordance with Section 3.09 of the Indenture.
(6) Redemption Procedures. If the Company redeems less than all of the Notes at any time, the Trustee will select Notes by lot on a
pro rata basis (or, in the case of Global Notes, based on a method that most nearly approximates a pro rata selection as the Trustee deems fair and appropriate) unless an alternative selection method is otherwise required by law or
applicable stock exchange or depositary requirements. The Company will redeem Notes of $2,000 or less in whole and not in part. For all purposes of the Indenture, unless the context otherwise requires, provisions of the Indenture that apply to Notes
called for redemption also apply to portions of Notes called for redemption.
(7) Notice of Redemption. Notices of redemption shall
be transmitted at least 30 but not more than 60 days before the Redemption Date to each Holder of Notes to be redeemed at its registered address. If any Note is to be redeemed in part only, the notice of redemption that relates to that Note will
state the portion of the principal amount thereof that is to be redeemed.
(8) Denominations, Transfer, Exchange. The Notes shall
be issuable only in fully registered form without coupons in denominations of $2,000 and any integral multiple of $1,000 in excess thereof. A Holder may transfer or exchange Notes in accordance with the Indenture.
(9) Persons Deemed Owners. The Depositary may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner of the Global Note for all purposes whatsoever.
(10) Unclaimed Money. If money for the payment of principal or
interest remains unclaimed for two years, the Trustee or Paying Agent will pay the money back to the Company at its request or, if such money is then held by the Company in trust, such money shall be released from such trust. After that, Holders
entitled to the money must look only to the Company for payment as general creditors unless applicable abandoned property law designates another Person.
(11) Amendment, Supplement, Waiver, Etc. The Company, the Guarantors and the Trustee may modify or amend the Indenture without the
consent of any Holder to, among other things, cure any ambiguity, defect, mistake or inconsistency in the Indenture and make any change that would provide any additional rights or benefits to the Holders or that does not adversely affect the legal
rights under the Indenture of the Holder. Other amendments and modifications of the Indenture or the Notes may be made by the Company and the Trustee with the consent of the Holders of a majority of the aggregate principal amount of the outstanding
Notes, subject to certain exceptions requiring the consent of each of the Holders of the Notes to be affected.
(12) Purchase of Notes
Upon a Change of Control Repurchase Event. If a Change of Control Repurchase Event occurs, each Holder of Notes will have the right to require that the Company purchase all or any part (in denominations of $2,000 and integral multiples of $1,000
in excess thereof) of such Holder’s Notes pursuant to a Change of Control offer (a “Change of Control Offer”) on the terms set forth in the Indenture, except that the Company shall not be obligated to repurchase the Notes
pursuant to Section 4.08 of the Indenture in the event that the Company has exercised the right to redeem all of the Notes as described in Section 3.07(b) of the Indenture. In the Change of Control Offer, the Company will offer to purchase
all of the Notes at a purchase price in cash in an amount equal to 101% of the principal amount of the Notes, plus accrued but unpaid interest, if any, to (but not including) the date of purchase (subject to the rights of Holders of record on
relevant record dates to receive interest due on the relevant Interest Payment Date if the Notes have not been redeemed prior to such record date).
A-2-4
(13) Successor Entity. When a successor entity assumes all the obligations of its
predecessor under the Notes and the Indenture and the transaction complies with the terms of Article V of the Indenture, the predecessor entity will, except as provided in Article V, be released from those obligations.
(14) Defaults and Remedies. Events of Default are set forth in the Indenture. Subject to certain limitations in the Indenture, if an
Event of Default with respect to the Notes (other than an Event of Default specified in Sections 6.01(8) and 6.01(9) of the Indenture with respect to the Company) shall have occurred and be continuing, the Trustee or the Holders of at least 25% in
outstanding principal amount of the Notes may declare to be immediately due and payable the principal amount of all Notes then outstanding, plus accrued but unpaid interest to the date of acceleration. If an Event of Default specified in Sections
6.01(8) and 6.01(9) of the Indenture with respect to the Company shall occur, such amount with respect to all the Notes shall become automatically due and payable immediately without any further action or notice. The Trustee shall be under no
obligation to exercise any of its rights or powers under the Indenture at the request or direction of any of the Holders, unless such Holders have offered to the Trustee security or indemnity satisfactory to the Trustee. Except in the case of a
Default or Event of Default in payment of the principal of, premium, if any, or interest on any Note (including payments pursuant to a redemption or repurchase of the Notes pursuant to the provisions of the Indenture), 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 Holders.
(15) Trustee Dealings with Company. The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and
may make loans to, accept deposits from, perform services for or otherwise deal with the Company or any Affiliate thereof with the same rights it would have if it were not Trustee.
(16) No Recourse Against Others. No director, officer, employee or stockholder of the Company or any of the Guarantors will have any
liability for any of the Company’s or such Guarantor’s obligations under the Notes or the Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of Notes by accepting a Note
waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.
(17)
Discharge. The Company’s obligations pursuant to the Indenture will be discharged, except for obligations pursuant to certain sections thereof, subject to the terms of the Indenture, upon the payment or cancellation of all the Notes or
upon the irrevocable deposit with the Trustee of United States dollars or U.S. Government Obligations sufficient to pay when due principal of and interest on the Notes at maturity or redemption, as the case may be.
(18) Guarantees. The Company’s obligations under the Notes are jointly and severally, fully and unconditionally guaranteed, to the
extent set forth in the Indenture, by each of the Guarantors.
(19) Authentication. This Note shall not be valid until the Trustee
manually signs the certificate of authentication on this Note.
(20) Governing Law. THE INTERNAL LAW OF THE STATE OF NEW YORK WILL
GOVERN AND BE USED TO CONSTRUE THIS NOTE WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
(21) Abbreviations. Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common),
TENANT (= 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).
The Company will furnish to any Holder upon written request and without charge a copy of the Indenture. Requests may be made to:
Mylan N.V.
c/o Mylan Inc.
1000 Mylan Boulevard
Canonsburg,
PA 15317
Attn: Bradley Wideman, Esq., Vice President, Associate General Counsel,
Securities and Assistant Secretary
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| Fax: (724) 514-1871 |
| Email: bradley.wideman@mylan.com |
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A-2-5
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| With a copy (which shall not constitute notice) to: |
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| Cravath, Swaine & Moore LLP |
| Worldwide Plaza |
| 825 Eighth Avenue |
| New York, NY 10019-7475 |
| Attn: |
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William V. Fogg |
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Johnny G. Skumpija |
| Fax: (212) 474-3700 |
| Email: |
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wfogg@cravath.com |
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jskumpija@cravath.com |
A-2-6
ASSIGNMENT
I or we assign and transfer this Note to:
(Insert assignee’s social security
or tax I.D. number)
(Print or type name, address and zip code of assignee)
and irrevocably appoint:
as Agent to transfer this Note on the
books of the Company. The Agent may substitute another to act for him.
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| Date: |
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Your Signature: |
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(Sign exactly as your name appears on the face of this Note) |
SIGNATURE GUARANTEE
Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Registrar, which requirements
include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all
in accordance with the Securities Exchange Act of 1934, as amended.
A-2-7
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER RESTRICTED SECURITIES
This certificate relates to $ principal amount of Notes held in definitive form by the undersigned.
The undersigned has requested the Trustee by written order to exchange or register the transfer of a Note or Notes.
In connection with any transfer of any of the Notes evidenced by this certificate occurring prior to the expiration of the period referred to in Rule 144
under the Securities Act, the undersigned confirms that such Notes are being transferred in accordance with its terms:
CHECK ONE BOX BELOW
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(1) |
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to the Company; or |
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(2) |
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to the Registrar for registration in the name of the Holder, without transfer; or |
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pursuant to an effective registration statement under the Securities Act of 1933; or |
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inside the United States to a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act of 1933) that purchases for its own account or for the account of a qualified institutional buyer to whom
notice is given that such transfer is being made in reliance on Rule 144A, in each case pursuant to and in compliance with Rule 144A under the Securities Act of 1933; or |
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(5) |
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outside the United States in an offshore transaction within the meaning of Regulation S under the Securities Act in compliance with Rule 904 under the Securities Act of 1933; or |
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(6) |
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to an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act of 1933) that has furnished to the Trustee a signed letter containing certain representations and
agreements; or |
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pursuant to another available exemption from registration provided by Rule 144 under the Securities Act of 1933. |
Unless one of the boxes is checked, the Trustee will refuse to register any of the Notes evidenced by this certificate in the
name of any Person other than the registered holder thereof; provided, however, that if box (5), (6) or (7) is checked, the Trustee may require, prior to registering any such transfer of the Notes, such legal opinions,
certifications and other information as the Company has reasonably requested 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 of 1933.
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| Signature Guarantee: |
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Signature must be guaranteed by a participant in a recognized signature guaranty medallion program or other signature guarantor acceptable to the Trustee |
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Signature of Signature Guarantee |
A-2-8
TO BE COMPLETED BY PURCHASER IF (4) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Note for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act of 1933, and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the
undersigned’s foregoing representations in order to claim the exemption from registration provided by Rule 144A.
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NOTICE: To be executed by an executive officer |
A-2-9
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant to Section 4.08 (Change of Control) of the Indenture, check the
box:
If you want to elect to have only part of this Note purchased by the
Company pursuant to Section 4.08 of the Indenture, state the principal amount (in denominations of $2,000 and integral multiples of $1,000 in excess thereof):
$
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Your Signature: |
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(Sign exactly as your name appears on the other side of the Note) |
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| Signature Guarantee: |
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Signature must be guaranteed by a participant in a recognized signature guaranty medallion program or other signature guarantor acceptable to the Trustee |
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A-2-10
[TO BE ATTACHED TO GLOBAL NOTES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The following increases or decreases in this Global Note have been made:
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| Date of Exchange |
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Amount of
decrease in
Principal Amount
of this Global Note |
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Amount of increase
in Principal
Amount of this
Global Note |
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Principal Amount
of this Global Note
following such
decrease or
increase |
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Signature of
authorized
signatory of
Trustee or Notes
Custodian |
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A-2-11
EXHIBIT B
[FORM OF LEGEND FOR 144A SECURITIES AND OTHER SECURITIES THAT ARE RESTRICTED SECURITIES]
“THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE
OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH
SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF, THE ORIGINAL ISSUE DATE OF THE ISSUANCE OF ANY ADDITIONAL NOTES AND THE LAST DATE ON WHICH THE
ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER
THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED
IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT
OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE
TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/ OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. BY ITS ACQUISITION OF THIS SECURITY, THE HOLDER THEREOF WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT EITHER (1) NO PORTION OF THE ASSETS USED BY SUCH
HOLDER TO ACQUIRE OR HOLD THIS SECURITY CONSTITUTES THE ASSETS OF AN EMPLOYEE BENEFIT PLAN THAT IS SUBJECT TO TITLE I OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OF A PLAN, INDIVIDUAL RETIREMENT
ACCOUNT OR OTHER ARRANGEMENT THAT IS SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”) OR PROVISIONS UNDER ANY OTHER FEDERAL, STATE, LOCAL, NON-U.S. OR OTHER LAWS OR REGULATIONS THAT ARE SIMILAR TO
SUCH PROVISIONS OF ERISA OR THE CODE (“SIMILAR LAWS”), OR OF AN ENTITY WHOSE UNDERLYING ASSETS ARE CONSIDERED TO INCLUDE “PLAN ASSETS” OF ANY SUCH PLAN, ACCOUNT OR ARRANGEMENT UNDER ERISA OR ANY SIMILAR LAW OR (2) THE
ACQUISITION AND HOLDING OF THIS SECURITY WILL NOT CONSTITUTE A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR A SIMILAR VIOLATION UNDER ANY APPLICABLE SIMILAR LAW.”
B-1
[FORM OF ASSIGNMENT FOR 144A SECURITIES AND OTHER SECURITIES THAT ARE RESTRICTED SECURITIES]
I or we assign and transfer this Note to:
(Insert assignee’s social security
or tax I.D. number)
(Print or type name, address and zip code of assignee)
and irrevocably appoint:
as Agent to transfer this Note on the
books of the Company. The Agent may substitute another to act for him.
[Check One]
¨ (a) This Note is being transferred in compliance with the exemption from registration under
the Securities Act of 1933, as amended provided by Rule 144A thereunder.
or
¨ (b) This Note is being transferred other than in accordance with clause (a) above and
documents are being furnished to the Registrar which comply with the conditions of transfer set forth in this Note and the Indenture.
If
none of the foregoing boxes is checked, the Trustee or Registrar shall not be obligated to register this Note in the name of any person other than the Holder hereof unless and until the conditions to any such transfer of registration set forth
herein and in Sections 2.16 and 2.17 of the Indenture shall have been satisfied.
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Your Signature: |
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(Sign exactly as your name appears on the face of this Note) |
SIGNATURE GUARANTEE
Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Registrar, which requirements
include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all
in accordance with the Securities Exchange Act of 1934, as amended.
TO BE COMPLETED BY TRANSFEROR IF (a) ABOVE IS CHECKED
The transfer is being effected pursuant to and in accordance with Rule 144A under the Securities Act of 1933, and, accordingly, the transferor
hereby further certifies that the beneficial interest or certificated Note is being transferred to a Person that the transferor reasonably believed and believes is purchasing the beneficial interest or certificated 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”
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within the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A and such transfer is in compliance with any applicable 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 certificated Note will be subject to the restrictions on transfer enumerated on the Rule 144A Notes and/or the
certificated Note and in the Indenture and the Securities Act.
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NOTICE: To be executed by an executive officer |
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EXHIBIT C
[FORM OF LEGEND FOR REGULATION S NOTE]
“THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE
OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH
SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS 40 DAYS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE DATE ON WHICH THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) WAS FIRST OFFERED TO
PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN RULE 902 OF REGULATION S) IN RELIANCE ON REGULATION S, ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN
RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR
OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S
RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/ OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE
REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN
OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT. BY ITS ACQUISITION OF THIS SECURITY, THE HOLDER THEREOF WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT EITHER (1) NO PORTION OF THE ASSETS USED BY SUCH HOLDER
TO ACQUIRE OR HOLD THIS SECURITY CONSTITUTES THE ASSETS OF AN EMPLOYEE BENEFIT PLAN THAT IS SUBJECT TO TITLE I OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OF A PLAN, INDIVIDUAL RETIREMENT ACCOUNT OR
OTHER ARRANGEMENT THAT IS SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”) OR PROVISIONS UNDER ANY OTHER FEDERAL, STATE, LOCAL, NON-U.S. OR OTHER LAWS OR REGULATIONS THAT ARE SIMILAR TO SUCH
PROVISIONS OF ERISA OR THE CODE (“SIMILAR LAWS”), OR OF AN ENTITY WHOSE UNDERLYING ASSETS ARE CONSIDERED TO INCLUDE “PLAN ASSETS” OF ANY SUCH PLAN, ACCOUNT OR ARRANGEMENT UNDER ERISA OR ANY SIMILAR LAW OR (2) THE ACQUISITION
AND HOLDING OF THIS SECURITY WILL NOT CONSTITUTE A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR A SIMILAR VIOLATION UNDER ANY APPLICABLE SIMILAR LAW.”
C-1
[FORM OF ASSIGNMENT FOR REGULATION S NOTE]
I or we assign and transfer this Note to:
(Insert assignee’s social security
or tax I.D. number)
(Print or type name, address and zip code of assignee)
and irrevocably appoint:
as Agent to transfer this Note on the
books of the Company. The Agent may substitute another to act for him.
[Check One]
¨ (a) This Note is being transferred in compliance with the exemption from registration under
the Securities Act of 1933, as amended, provided by Rule 903 or Rule 904 under the Securities Act of 1933, as amended.
or
¨ (b) This Note is being transferred other than in accordance with clause (a) above and
documents are being furnished to the Registrar which comply with the conditions of transfer set forth in this Note and the Indenture.
If
none of the foregoing boxes is checked, the Trustee or Registrar shall not be obligated to register this Note in the name of any person other than the Holder hereof unless and until the conditions to any such transfer of registration set forth
herein and in Sections 2.16 and 2.17 of the Indenture shall have been satisfied.
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Your Signature: |
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(Sign exactly as your name appears on the face of this Note) |
SIGNATURE GUARANTEE
Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Registrar, which requirements
include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all
in accordance with the Securities Exchange Act of 1934, as amended.
TO BE COMPLETED BY TRANSFEROR IF (a) ABOVE IS CHECKED
The transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act of 1933, as amended 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
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proposed transfer is being made prior to the expiration of the restricted period under Regulation S, the transfer is not being made to a U.S. Person or for the account or benefit of a U.S. Person
(other than an initial purchaser). Upon consummation of the proposed transfer in accordance with the terms of the Indenture, the transferred beneficial interest or certificated Note will be subject to the restrictions on transfer enumerated on the
Regulation S Notes and/or the certificated Note and in the Indenture and the Securities Act.
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NOTICE: To be executed by an executive officer |
C-3
EXHIBIT D
[FORM OF LEGEND FOR GLOBAL NOTE]
Any Global Note authenticated and delivered hereunder shall bear a legend (which would be in addition to any other legends required in the
case of a Restricted Note) in substantially the following form:
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO
AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY. THIS NOTE IS NOT EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER THAN A TRANSFER OF THIS NOTE 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) MAY BE REGISTERED
EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY
TRUST COMPANY (A NEW YORK CORPORATION) (“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 IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS IS 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.
D-1
EXHIBIT E
Form of Certificate To Be Delivered
in Connection with Transfers
Pursuant to Regulation S
The Bank of New
York Mellon, N.A.
500 Ross Street, 12th Floor
Pittsburgh,
PA 15262
Attention: Corp Trust Admin - Mylan
Attention:
Corporate Trust Division - Corporate Finance Unit
Re: Mylan N.V., a public limited liability company (naamloze vennootschap)
incorporated and existing under the laws of the Netherlands, as issuer
(the “Company”), [3.000% Senior Notes due 2018
/ 3.750% Senior Notes due 2020] (the “Notes”)
Dear Sirs:
In connection with our proposed sale of $[ ] aggregate principal amount of the Notes, we confirm that such sale
has been effected pursuant to and in accordance with Regulation S under the U.S. Securities Act of 1933, as amended (the “Securities Act”), and, accordingly, we represent that:
(1) the offer of the Notes was not made to a U.S. person or to a person in the United States;
(2) either (a) at the time the buy offer was originated, the transferee was outside the United States or we and any person
acting on our behalf reasonably believed that the transferee was outside the United States, or (b) the transaction was executed in, on or through the facilities of a designated offshore securities market and neither we nor any person acting on
our behalf knows that the transaction has been prearranged with a buyer in the United States;
(3) no directed selling
efforts have been made in the United States in contravention of the requirements of Rule 904(a) of Regulation S;
(4) the
transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act; and
(5) we have
advised the transferee of the transfer restrictions applicable to the Notes.
You are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby. Terms used in this certificate have the meanings set
forth in Regulation S.
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EXHIBIT F
[FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR]
Mylan N.V.
c/o Mylan Inc.
1000 Mylan Boulevard
Canonsburg, PA 15317
Attn: Bradley Wideman, Esq., Vice President, Associate General Counsel, Securities and Assistant Secretary
The Bank of New York Mellon, N.A.
500 Ross Street, 12th Floor
Pittsburgh, PA 15262
Attention: Corp Trust Admin - Mylan
Re: [3.000% Senior Notes due 2018 / 3.750% Senior Notes due 2020] (the “Notes”)
Reference is hereby made to the Indenture, dated as of December 9, 2015 (the “Indenture”), between Mylan N.V., as issuer
(the “Company”), and The Bank of New York Mellon, as trustee. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
In connection with our proposed purchase of $[ ] aggregate principal amount of:
(a) [ ] a beneficial interest in a Global Note, or
(b) [ ] a Definitive Note,
we confirm that:
1. We
understand that any subsequent transfer of the Notes or any interest therein is subject to certain restrictions and conditions set forth in the Indenture and the undersigned agrees to be bound by, and not to resell, pledge or otherwise transfer the
Notes or any interest therein except in compliance with, such restrictions and conditions and the Securities Act of 1933, as amended (the “Securities Act”).
2. We understand that the offer and sale of the Notes has not been registered under the Securities Act, and that the Notes and
any interest therein may not be offered or sold except as permitted in the following sentence. We agree, on our own behalf and on behalf of any accounts for which we are acting as hereinafter stated, that if we should sell the Notes or any interest
therein, prior to the expiration of the holding period applicable to sales of the Notes under Rule 144 of the Securities Act, we will do so only (A) to the Company or any subsidiary thereof, (B) in accordance with Rule 144A under the
Securities Act to a “qualified institutional buyer” (as defined therein), (C) to an institutional “accredited investor” (as defined below) that, prior to such transfer, furnishes (or has furnished on its behalf by a U.S.
broker-dealer) to you and to the Company a signed letter substantially in the form of this letter and, if such transfer is in respect of a principal amount of Notes, at the time of transfer of less than $250,000, an Opinion of Counsel in form
reasonably acceptable to the Company to the effect that such transfer is in compliance with the Securities Act, (D) outside the United States in accordance with Rule 904 of Regulation S under the Securities Act, (E) pursuant to the
provisions of Rule 144 under the Securities Act or (F) pursuant to an effective registration statement under the Securities Act, and we further agree to provide to any person purchasing the Definitive Note or beneficial interest in a Global
Note from us in a transaction meeting the requirements of clauses (A) through (E) of this paragraph a notice advising such purchaser that resales thereof are restricted as stated herein.
3. We understand that, on any proposed resale of the Notes or beneficial interest therein, we will be required to furnish to
you and the Company such certifications, legal opinions and other information as you and the Company may reasonably require to confirm that the proposed sale complies with the foregoing restrictions. We further understand that the Notes purchased by
us will bear a legend to the foregoing effect.
F-1
4. We are an institutional “accredited investor” (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of our investment in the Notes, and we and
any accounts for which we are acting are each able to bear the economic risk of our or its investment.
5. We are acquiring
the Notes or beneficial interest therein purchased by us for our own account or for one or more accounts (each of which is an institutional “accredited investor”) as to each of which we exercise sole investment discretion.
You and the Company are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.
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Dated:
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EXHIBIT G
[FORM OF NOTATION OF GUARANTEE]
Each of the undersigned (collectively, the “Guarantors”) have guaranteed, jointly and severally, fully and
unconditionally (such guarantee by each Guarantor being referred to herein as the “Guarantee”) (i) the due and punctual payment of the principal of and interest on the Notes, whether at maturity, by acceleration or otherwise,
the due and punctual payment of interest on the overdue principal and interest, if any, on the Notes, to the extent lawful, and the due and punctual performance of all other obligations of the Company to the Holders or the Trustee all in accordance
with the terms set forth in Article X of the Indenture and (ii) 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.
No director,
officer, employee or stockholder of the Guarantors will have any liability for any of the Guarantor’s obligations under the Guarantee or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of
Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Guarantees.
Each holder of a Note by accepting a Note agrees that any Guarantor named below shall have no further liability with respect to its Guarantee
if such Guarantor otherwise ceases to be liable in respect of its Guarantee in accordance with the terms of the Indenture.
The Guarantee
shall not be valid or obligatory for any purpose until the certificate of authentication on the Notes upon which the Guarantee is noted shall have been executed by the Trustee under the Indenture by the manual signature of one of its authorized
officers.
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EXHIBIT H
[FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS]
SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of
, among (the “Guaranteeing Subsidiary”), a subsidiary of Mylan N.V., a public limited liability company
(naamloze vennootschap) incorporated and existing under the laws of the Netherlands (or its permitted successor) (the “Company”), the Company, the other Guarantors (as defined in the Indenture referred to herein) and The Bank
of New York Mellon, as trustee under the Indenture referred to below (the “Trustee”).
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the Trustee an indenture (the “Indenture”),
dated as of December 9, 2015 providing for the issuance of 3.000% Senior Notes due 2018 and 3.750% Senior Notes due 2020 (collectively, the “Notes”);
WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiary shall execute and deliver to the Trustee a
supplemental indenture pursuant to which the Guaranteeing Subsidiary shall unconditionally guarantee all of the Company’s Obligations under the Notes and the Indenture on the terms and conditions set forth herein (the “Note
Guarantee”); and
WHEREAS, pursuant to Section 8.01 of the Indenture, the parties hereto are 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 hereto 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 to provide an unconditional Guarantee on the terms and subject to the
conditions set forth in the Guarantee and in the Indenture including but not limited to Article X thereof.
3. NO RECOURSE AGAINST OTHERS.
No director, officer, employee or stockholder of the Company or any of the Guarantors will have any liability for any of the Company’s or such Guarantor’s obligations under the Notes, the Indenture, the Note Guarantees or for any claim
based on, in respect of, or by reason of, such obligations or their creation. Each Holder of Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes and the
Note Guarantees.
4. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK (INCLUDING, WITHOUT LIMITATION, SECTION 5-1401 OF
THE NEW YORK GENERAL OBLIGATIONS LAW OR ANY SUCCESSOR TO SUCH STATUTE) WILL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS
OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
5. COUNTERPARTS. The parties may sign any number of copies of this Supplemental
Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
6. EFFECT OF HEADINGS. The
Section headings herein are for convenience only and shall not affect the construction hereof.
7. THE TRUSTEE. The Trustee shall not be
responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Guaranteeing Subsidiary and the
Company.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed and attested, all as of the date first above written.
Dated:
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| [MYLAN N.V.] |
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| [EXISTING GUARANTORS] |
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Authorized Signatory |
H-2
Exhibit 10.1
Mylan N.V.
Registration Rights Agreement
$500,000,000 3.000% Senior Notes Due 2018
$500,000,000 3.750% Senior Notes Due 2020
December 9, 2015
This
Registration Rights Agreement dated December 9, 2015 (this “Agreement”) is entered into by and among Mylan N.V., a public limited liability company (naamloze vennootschap) incorporated and existing under the laws of the
Netherlands (the “Company”), Mylan Inc., a Pennsylvania corporation (the “Initial Guarantor”), and Goldman, Sachs & Co., Deutsche Bank Securities Inc. and Mitsubishi UFJ Securities (USA), Inc., as
representatives (the “Representatives”) of the several purchasers named in Schedules I(a) and I(b) to the Purchase Agreement (as defined below) (the “Initial Purchasers”).
The Company, the Initial Guarantor and the Initial Purchasers are parties to the Purchase Agreement dated December 4, 2015 (the
“Purchase Agreement”), which provides for the sale by the Company to the Initial Purchasers of $500,000,000 aggregate principal amount of the Company’s 3.000% Senior Notes due 2018 (the “2018 Notes”) and
$500,000,000 aggregate principal amount of the Company’s 3.750% Senior Notes due 2020 (the “2020 Notes” and together with the 2018 Notes, the “Securities”), which will be guaranteed on an unsecured senior basis
by each of the Guarantors. Each of the 2018 Notes and the 2020 Notes are sometimes referred to herein as a “Series” of Notes. As an inducement to the Initial Purchasers to enter into the Purchase Agreement, the Company and the
Guarantors have agreed to provide to the Initial Purchasers and their direct and indirect transferees the registration rights set forth in this Agreement. The execution and delivery of this Agreement is a condition to the closing under the Purchase
Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following terms shall have the following meanings:
“Additional Guarantor” shall mean any subsidiary of the Company that becomes a Guarantor under the Indenture after the date
of this Agreement.
“Additional Interest” shall have the meaning set forth in Section 2(e) hereof.
“Business Day” shall mean any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are
authorized or required by law to remain closed. For purposes of this Agreement, if the day on which any deadline specified in this Agreement expires is not a Business Day, such deadline shall be deemed to expire on the next succeeding Business Day.
“Company” shall have the meaning set forth in the preamble and shall also
include the Company’s successors.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended from
time to time.
“Exchange Act Report” shall mean any report to be filed by the Company or the Guarantors under the
Exchange Act.
“Exchange Dates” shall have the meaning set forth in Section 2(a)(ii) hereof.
“Exchange Offer” shall mean the exchange offer by the Company and the Guarantors of Exchange Securities for Registrable
Securities pursuant to Section 2(a) hereof.
“Exchange Offer Registration” shall mean a registration under the
Securities Act effected pursuant to Section 2(a) hereof.
“Exchange Offer Registration Statement” shall mean an
exchange offer registration statement on Form S-4 (or, if applicable, on another appropriate form) and all amendments and supplements to such registration statement, in each case including the Prospectus contained therein or deemed a part thereof,
all exhibits thereto and any document incorporated by reference therein.
“Exchange Securities” shall mean, with respect
to the Registrable Securities of each Series, senior notes issued by the Company and guaranteed by the Guarantors under the Indenture containing terms identical to the Securities of such Series (except that the Exchange Securities will not be
subject to restrictions on transfer or to any increase in annual interest rate for failure to comply with this Agreement) and to be offered to Holders of Securities of such Series in exchange for Securities of such Series pursuant to the Exchange
Offer.
“FINRA” means the Financial Industry Regulatory Authority, Inc.
“Free Writing Prospectus” means each free writing prospectus (as defined in Rule 405 under the Securities Act) prepared by or
on behalf of the Company or used or referred to by the Company in connection with the sale of the Securities or the Exchange Securities.
“Guarantees” shall mean the guarantees of the Securities and guarantees of the Exchange Securities by the Guarantors under
the Indenture.
“Guarantors” shall mean the Initial Guarantor, any Additional Guarantors and any Guarantor’s
successor that Guarantees the Securities, in each case, until such time as any such Guarantor is released from its Guarantee in accordance with the Indenture.
“Holders” shall mean the Initial Purchasers, for so long as they own any Registrable Securities, and each of their
successors, assigns and direct and indirect
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transferees who become owners of Registrable Securities under the Indenture; provided that, for purposes of Section 4 and Section 5 hereof, the term “Holders” shall
include Participating Broker-Dealers.
“Indemnified Person” shall have the meaning set forth in Section 5(c) hereof.
“Indemnifying Person” shall have the meaning set forth in Section 5(c) hereof.
“Indenture” shall mean the Indenture relating to the Securities dated as of December 9, 2015, among the Company, the
Initial Guarantor and The Bank of New York Mellon, as trustee, as the same may be amended from time to time in accordance with the terms thereof.
“Initial Purchasers” shall have the meaning set forth in the preamble.
“Majority Holders” shall mean, with respect to any Series of Notes, the Holders of a majority of the aggregate principal
amount of the outstanding Registrable Securities of such Series; provided that whenever the consent or approval of Holders of a specified percentage of Registrable Securities of such Series is required hereunder, any Registrable Securities of
such Series owned directly or indirectly by the Company or any of its controlled affiliates shall not be counted in determining whether such consent or approval was given by the Holders of such required percentage or amount; and provided,
further, that if the Company shall issue any additional Securities under the Indenture prior to consummation of the Exchange Offer or, if applicable, the effectiveness of any Shelf Registration Statement, such additional Securities of such
Series and the Registrable Securities of such Series to which this Agreement relates shall be treated together as one class for purposes of determining whether the consent or approval of Holders of a specified percentage of Registrable Securities
has been obtained.
“Notice and Questionnaire” shall mean a notice of registration statement and selling security holder
questionnaire distributed to a Holder by the Company upon receipt of a Shelf Request from such Holder.
“Participating
Broker-Dealers” shall have the meaning set forth in Section 4(a) hereof.
“Participating Holder” shall mean
any Holder of Registrable Securities that has returned a completed and signed Notice and Questionnaire to the Company in accordance with Section 2(b) hereof.
“Person” shall mean an individual, partnership, limited liability company, corporation, trust or unincorporated organization,
or a government or agency or political subdivision thereof.
“Prospectus” shall mean the prospectus included in, or,
pursuant to the rules and regulations of the Securities Act, deemed a part of, a Registration Statement, including any preliminary prospectus, and any such prospectus as amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of
3
the offering of any portion of the Registrable Securities covered by a Shelf Registration Statement, and by all other amendments and supplements to such prospectus, and in each case including any
document incorporated by reference therein.
“Purchase Agreement” shall have the meaning set forth in the preamble.
“Registrable Securities” shall mean the Securities; provided that any Securities shall cease to be Registrable
Securities at the earliest date (i) when a Registration Statement with respect to such Securities has become effective under the Securities Act and such Securities have been exchanged or disposed of pursuant to such Registration Statement,
(ii) when such Securities cease to be outstanding, (iii) except in the case of Securities that otherwise remain Registrable Securities and that are held by an Initial Purchaser and that are ineligible to be exchanged in the Exchange Offer,
when the Exchange Offer is consummated or (iv) when such Securities are freely tradeable, without restriction, under federal or state securities laws.
“Registration Default” shall mean, as to any Series of Notes, the occurrence of any of the following: (i) the Exchange
Offer, with respect to such Series of Notes, is not completed on or prior to the Target Registration Date, (ii) the Shelf Registration Statement, with respect to such Series of Notes, if required pursuant to Section 2(b)(i) hereof, has not
become effective on or prior to the Target Registration Date, (iii) if the Company receives a Shelf Request pursuant to Section 2(b)(ii), the Shelf Registration Statement required to be filed thereby has not become effective by the later
of (a) the Target Registration Date and (b) 90 days after delivery of such Shelf Request or, (iv) the Shelf Registration Statement, if required by this Agreement, has become effective and thereafter ceases to be effective or the
Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 180 days (whether or
not consecutive) in any 12-month period.
“Registration Expenses” shall mean any and all expenses incident to performance
of or compliance by the Company and the Guarantors with this Agreement, including without limitation: (i) all SEC or FINRA registration and filing fees, (ii) all fees and expenses incurred in connection with compliance with state
securities or blue sky laws to the extent required hereunder, (iii) all expenses in preparing or assisting in preparing, word processing, printing and distributing any Registration Statement, any Prospectus, any Free Writing Prospectus and any
amendments or supplements thereto, any underwriting agreements, securities sales agreements or other similar agreements and any other documents relating to the performance of and compliance with this Agreement, (iv) all rating agency fees,
(v) all fees and disbursements relating to the qualification of the Indenture under applicable securities laws, (vi) the fees and disbursements of the Trustee and its counsel, (vii) the fees and disbursements of counsel for the
Company and the Guarantors and (viii) the fees and disbursements of the independent registered public accountants of the Company and the Guarantors, including the expenses of any special audits or “comfort” letters required by or
incident to the performance of and compliance with this Agreement, but excluding in all cases fees and expenses of counsel to the Underwriters or the Holders and underwriting discounts and commissions, brokerage
4
commissions and transfer taxes, if any, relating to the sale or disposition of Registrable Securities by a Holder and any other costs or expenses of the Underwriters or the Holders.
“Registration Statement” shall mean any registration statement of the Company and the Guarantors that covers any of the
Exchange Securities or Registrable Securities pursuant to the provisions of this Agreement and all amendments and supplements to any such registration statement, including post-effective amendments, in each case including the Prospectus contained
therein or deemed a part thereof, all exhibits thereto and any document incorporated by reference therein.
“Representatives” shall have the meaning set forth in the preamble.
“SEC” shall mean the United States Securities and Exchange Commission.
“Securities” shall have the meaning set forth in the preamble.
“Securities Act” shall mean the Securities Act of 1933, as amended from time to time.
“Shelf Effectiveness Period” shall have the meaning set forth in Section 2(b) hereof.
“Shelf Registration” shall mean a registration effected pursuant to Section 2(b) hereof.
“Shelf Registration Statement” shall mean a “shelf” registration statement of the Company and the Guarantors that
covers all or a portion of the Registrable Securities on an appropriate form under Rule 415 under the Securities Act, or any similar rule that may be adopted by the SEC, and all amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained therein or deemed a part thereof, all exhibits thereto and any document incorporated by reference therein.
“Shelf Request” shall have the meaning set forth in Section 2(b) hereof.
“Staff” shall mean the staff of the SEC.
“Target Registration Date” shall mean 365 days after the date hereof.
“Trust Indenture Act” shall mean the Trust Indenture Act of 1939, as amended from time to time.
“Trustee” shall mean the trustee with respect to the Securities under the Indenture.
“Underwriter” shall have the meaning set forth in Section 3(e) hereof.
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“Underwritten Offering” shall mean an offering in which Registrable Securities
are sold to an Underwriter for reoffering to the public.
2. Registration under the Securities Act.
(a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company and the Guarantors shall use
their commercially reasonable efforts to (x) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities and (y) have such Registration
Statement become and remain effective until 90 days after the last Exchange Date for use by one or more Participating Broker-Dealers.
The
Company and the Guarantors shall commence the Exchange Offer by mailing or making available the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as
are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this
Agreement and that all Registrable Securities validly tendered and not properly withdrawn will be accepted for exchange;
(ii) the period of acceptance for exchange (which shall be a period of at least 20 Business Days from the date such notice is
mailed or made available) (the “Exchange Dates”);
(iii) that any Registrable Security not tendered will
remain outstanding and continue to accrue interest but will not retain any rights under this Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to
(A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the
applicable procedures of the depositary for such Registrable Security, in each case on or prior to the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the last Exchange Date, by (A) sending to
the institution and at the address specified in the notice, a telegram, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is
withdrawing its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities.
As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors that
(1) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (2) at the time of the
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commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities
in violation of the provisions of the Securities Act, (3) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor and (4) if such Holder is a broker-dealer that will
receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make
available a Prospectus to purchasers) in connection with any resale of such Exchange Securities.
As soon as reasonably practicable after
the last Exchange Date, the Company and the Guarantors shall:
(I) accept for exchange Registrable Securities or portions
thereof validly tendered and not properly withdrawn pursuant to the Exchange Offer; and
(II) deliver, or cause to be
delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in
principal amount to the principal amount of the Registrable Securities tendered by such Holder.
The Company and the Guarantors shall use
their commercially reasonable efforts to complete the Exchange Offer as provided above and shall comply in all material respects with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws and regulations in
connection with the Exchange Offer.
For the avoidance of doubt, notwithstanding any provision herein purporting to require physical
mailing, delivery or acceptance of any document or instrument, the Company and the Guarantors may conduct the Exchange Offer exclusively through the automated tender offer program of the Depository Trust Company or any successor or similar system
permitting electronic transmittal, tender and acceptance of documents and instruments, provided that this provision shall apply only to Registrable Securities held in the form of beneficial interests in a global note deposited with (or held
by a custodian for) the Depository Trust Company.
(b) In the event that (i) the Company and the Guarantors determine that the
Exchange Offer Registration provided for in Section 2(a) hereof would violate any applicable law or applicable interpretations of the Staff or (ii) upon receipt of a written request (a “Shelf Request”) from any Initial
Purchaser representing that it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange Offer, the Company and the Guarantors shall use their commercially reasonable efforts to cause to be filed as soon as reasonably
practicable after such determination or Shelf Request, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effective;
provided that no Holder will be entitled to have any Registrable Securities included in any Shelf Registration Statement, or entitled to use the
7
prospectus forming a part of such Shelf Registration Statement, until such Holder shall have delivered a completed and signed Notice and Questionnaire and provided such other information
regarding such Holder to the Company as is contemplated by Section 3(b) hereof.
In the event that the Company and the Guarantors are
required to file a Shelf Registration Statement pursuant to clause (ii) of the preceding sentence, the Company and the Guarantors shall use their commercially reasonable efforts to file and have become effective both an Exchange Offer
Registration Statement pursuant to Section 2(a) hereof with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to
offers and sales of Registrable Securities held by the Initial Purchasers after completion of the Exchange Offer.
The Company and the
Guarantors agree to use their commercially reasonable efforts to keep the Shelf Registration Statement, if required, continuously effective until the earliest of (x) the date the Securities cease to be Registrable Securities, (y) one year
after the date hereof and (z) the date when Holders, other than Holders that are “affiliates” (as defined in Rule 144) of the Company, are able to sell such Securities without restriction, and without reliance as to the availability
of current public information, pursuant to Rule 144 promulgated under the Securities Act (the “Shelf Effectiveness Period”). The Company and the Guarantors further agree to supplement or amend the Shelf Registration Statement, the
related Prospectus and any Free Writing Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and
regulations thereunder or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their commercially reasonable efforts to cause any such amendment to become effective, if
required, and such Shelf Registration Statement, Prospectus or Free Writing Prospectus, as the case may be, to become usable as soon as thereafter reasonably practicable subject to Section 3(d) below. The Company and the Guarantors agree to
furnish to the Participating Holders copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c)
The Company and the Guarantors shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. Each Holder shall pay all underwriting discounts and commissions, brokerage commissions
and transfer taxes, if any, relating to the sale or disposition of such Holder’s Registrable Securities pursuant to the Shelf Registration Statement.
(d) If a Registration Default occurs with respect to the Registrable Securities of a Series, the interest rate on the Registrable Securities
of such Series will be increased by (i) 0.25% per annum for the first 90-day period beginning on the day immediately following such Registration Default and (ii) an additional 0.25% per annum with respect to each subsequent
90-day period, in each case until and including the date such Registration Default ends, up to a maximum increase of 0.50% per annum (such interest referred to in clauses (i) and (ii) above, “Additional Interest”);
provided that in no event
8
shall Additional Interest accrue after the Shelf Effectiveness Period. A Registration Default, with respect to the Registrable Securities of a Series, ends when the Securities of such Series
cease to be Registrable Securities or, if earlier, (1) in the case of a Registration Default under clause (i) of the definition thereof, when the Exchange Offer is completed, (2) in the case of a Registration Default under clause
(ii) or clause (iii) of the definition thereof, when the Shelf Registration Statement becomes effective or (3) in the case of a Registration Default under clause (iv) or clause (v) of the definition thereof, when the Shelf
Registration Statement again becomes effective or the Prospectus again becomes usable. If at any time more than one Registration Default has occurred and is continuing, then, until the next date that there is no Registration Default, the increase in
interest rate provided for by this paragraph shall apply as if there occurred a single Registration Default that begins on the date that the earliest such Registration Default occurred and ends on such next date that there is no Registration
Default. The Representatives acknowledge and agree that the Company and the Guarantors will not be required to pay Additional Interest hereunder once the Securities become freely tradeable under Rule 144 promulgated under the Securities Act.
(e) It is acknowledged that the interest rate increase set forth above is the sole remedy for any default hereunder.
3. Registration Procedures.
(a) In connection with their obligations pursuant to Section 2(a) and Section 2(b) hereof, the Company and the Guarantors shall:
(i) use their commercially reasonable efforts to prepare and file with the SEC a Registration Statement on the appropriate
form under the Securities Act, which form (A) shall be selected by the Company and the Guarantors, (B) shall, in the case of a Shelf Registration, be available for the sale of the Registrable Securities by the Holders thereof and
(C) shall comply as to form in all material respects with the requirements of the applicable form and include all financial statements required by the SEC to be filed therewith; and use their commercially reasonable efforts to cause such
Registration Statement to become effective and remain effective for the applicable period in accordance with Section 2 hereof;
(ii) subject to Section 3(d) below, (A) prepare and file with the SEC such amendments and post-effective amendments
to each Registration Statement as may be necessary to keep such Registration Statement effective for the applicable period in accordance with Section 2 hereof and cause each Prospectus to be supplemented by any required prospectus supplement
and, as so supplemented, to be filed pursuant to Rule 424 under the Securities Act; and (B) keep each Prospectus current during the period described in Section 4(3) of and Rule 174 under the Securities Act that is applicable to
transactions by brokers or dealers with respect to the Registrable Securities or Exchange Securities;
9
(iii) to the extent any Free Writing Prospectus is used, file with the SEC any
Free Writing Prospectus that is required to be filed by the Company or the Guarantors with the SEC in accordance with the Securities Act and to retain any Free Writing Prospectus not required to be filed;
(iv) in the case of a Shelf Registration, furnish to each Participating Holder, to counsel for the Initial Purchasers, to
counsel for such Participating Holders and to each Underwriter of an Underwritten Offering of Registrable Securities, if any, without charge, as many copies of each Prospectus, preliminary prospectus or Free Writing Prospectus, and any amendment or
supplement thereto, as such Participating Holder, counsel or Underwriter may reasonably request in order to facilitate the sale or other disposition of the Registrable Securities thereunder; and, subject to Section 3(c) hereof, the Company and
the Guarantors consent to the use of such Prospectus, preliminary prospectus or such Free Writing Prospectus and any amendment or supplement thereto in accordance with applicable law by each of the Participating Holders and any such Underwriters in
connection with the offering and sale of the Registrable Securities covered by and in the manner described in such Prospectus, preliminary prospectus or such Free Writing Prospectus or any amendment or supplement thereto in accordance with
applicable law;
(v) in the case of a Shelf Registration, use their commercially reasonable efforts to register or qualify
the Registrable Securities under all applicable state securities or blue sky laws of such jurisdictions as any Participating Holder shall reasonably request in writing by the time the applicable Registration Statement becomes effective; cooperate
with such Participating Holders in connection with any filings required to be made with FINRA; provided that neither the Company nor any Guarantor shall be required to (1) qualify or be authorized, as applicable, as a foreign corporation
or other entity or as a dealer in securities, investment firm or other entity under financial supervision in any such jurisdiction where it would not otherwise be required to so qualify or be authorized, (2) file any general consent to service
of process in any such jurisdiction, (3) subject itself to taxation in any such jurisdiction if it is not so subject or (4) make any changes to incorporating or organizational documents (including its deed of incorporation, articles of
association, board rules or any charter);
(vi) in the case of a Shelf Registration, notify counsel for the Initial
Purchasers and notify each Participating Holder and counsel for such Participating Holders promptly and, if requested by any such Participating Holder or counsel, confirm such advice in writing (1) when a Registration Statement has become
effective, when any post-effective amendment thereto has been filed and becomes effective, when any Free Writing Prospectus has been filed or any amendment or supplement to the Prospectus or any Free Writing Prospectus has been filed, (2) of
any request by the SEC or any state securities authority for amendments and supplements to a Registration Statement, Prospectus or any Free Writing Prospectus or for additional information after the Registration Statement has
10
become effective, (3) of the issuance by the SEC or any state securities authority of any stop order suspending the effectiveness of a Registration Statement or the initiation of any
proceedings for that purpose, including the receipt by the Company of any notice of objection of the SEC to the use of a Shelf Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act,
(4) if, between the applicable effective date of a Shelf Registration Statement and the closing of any sale of Registrable Securities covered thereby, the Company or any Guarantor receives any notification with respect to the suspension of the
qualification of the Registrable Securities for sale in any jurisdiction or the initiation of any proceeding for such purpose, (5) of the happening of any event during the period a Registration Statement is effective that makes any statement
made in such Registration Statement or the related Prospectus or any Free Writing Prospectus untrue in any material respect or that requires the making of any changes in such Registration Statement or Prospectus or any Free Writing Prospectus in
order to make the statements therein not misleading and (6) of any determination by the Company or any Guarantor that a post-effective amendment to a Registration Statement or any amendment or supplement to the Prospectus or any Free Writing
Prospectus would be appropriate;
(vii) subject to Section 3(d) below, use their commercially reasonable efforts to
obtain the withdrawal of any order suspending the effectiveness of a Registration Statement or, in the case of a Shelf Registration, the resolution of any objection of the SEC pursuant to Rule 401(g)(2) under the Securities Act, including by filing
an amendment to such Registration Statement on the proper form, as soon as reasonably practicable and provide prompt notice to each Holder or Participating Holder of the withdrawal of any such order or such resolution;
(viii) in the case of a Shelf Registration, furnish to each Participating Holder upon request, without charge, at least one
conformed copy of each Registration Statement and any post-effective amendment thereto (without any documents incorporated therein by reference or exhibits thereto, unless requested);
(ix) in the case of a Shelf Registration, cooperate with the Participating Holders to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends and enable such Registrable Securities to be issued in such denominations and registered in such names (consistent with the provisions of
the Indenture) as such Participating Holders may reasonably request at least one Business Day prior to the closing of any sale of Registrable Securities;
(x) upon the occurrence of any event contemplated by Section 3(a)(vi)(5) hereof, subject to Section 3(d) below, use
their commercially reasonable efforts to prepare and file with the SEC a supplement or post-effective amendment to the applicable Exchange Offer Registration Statement or Shelf Registration Statement or the related Prospectus or any Free Writing
Prospectus
11
or any document incorporated therein by reference or file any other required document so that, as thereafter delivered (or, to the extent permitted by law, made available) to purchasers of the
Registrable Securities, such Prospectus or Free Writing Prospectus, as the case may be, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and the Company shall notify the Participating Holders (in the case of a Shelf Registration Statement) and the Initial Purchasers and any Participating Broker-Dealers known to the Company (in
the case of an Exchange Offer Registration Statement) to suspend use of the Prospectus or any Free Writing Prospectus as promptly as practicable after the occurrence of such an event, and such Participating Holders, such Participating Broker-Dealers
and the Initial Purchasers, as applicable, hereby agree to suspend use of the Prospectus or any Free Writing Prospectus, as the case may be, upon receipt of such notice from the Company until the Company and the Guarantors have amended or
supplemented the Prospectus or the Free Writing Prospectus, as the case may be, to correct such misstatement or omission;
(xi) the Company and the Guarantors shall not, at any time after initial filing of a Registration Statement, use or file any
Prospectus, any Free Writing Prospectus, any amendment of or supplement to a Registration Statement or a Prospectus or a Free Writing Prospectus, or any document that is to be incorporated by reference into a Registration Statement (other than an
Exchange Act Report), a Prospectus or a Free Writing Prospectus, of which the Initial Purchasers and their counsel (and, in the case of a Shelf Registration Statement, the Participating Holders and their counsel) shall not have previously been
advised and furnished a copy or to which the Initial Purchasers or their counsel or the Participating Holders or their counsel shall reasonably object;
(xii) obtain a CUSIP number for all Exchange Securities or Registrable Securities, as the case may be, not later than the
initial effective date of a Registration Statement;
(xiii) cause the Indenture to be qualified under the Trust Indenture
Act in connection with the registration of the Exchange Securities or Registrable Securities, as the case may be; cooperate with the Trustee and the Holders to effect such changes to the Indenture as may be required for the Indenture to be so
qualified in accordance with the terms of the Trust Indenture Act; and execute, and use their commercially reasonable efforts to cause the Trustee to execute, all documents as may be required to effect such changes and all other forms and documents
required to be filed with the SEC to enable the Indenture to be so qualified in a timely manner;
(xiv) if reasonably
requested by any Participating Holder, promptly include in a Prospectus supplement or post-effective amendment such information with respect to such Participating Holder as such Participating Holder reasonably requests to be included therein and
make all required filings of such Prospectus supplement or such post-effective amendment as soon as the Company has received notification of the matters to be so included in such filing; and
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(b) In the case of a Shelf Registration Statement, the Company may require, as a condition to
including a Holder’s Registrable Securities in the Registration Statement, each Holder of Registrable Securities to furnish to the Company a Notice and Questionnaire and such other information regarding such Holder and the proposed disposition
by such Holder of such Registrable Securities as the Company and the Guarantors may from time to time reasonably request in writing. No Holder of Registrable Securities shall be entitled to include any of its Registrable Securities in any Shelf
Registration pursuant to this Agreement unless such Holder furnishes to the Company in writing, within 20 days after receipt of a written request therefor, such information as the Company may reasonably request for inclusion in any Shelf
Registration or Prospectus included therein, and no such Holder shall be entitled to Additional Interest pursuant hereto.
(c) Each
Participating Holder agrees that, upon receipt of any notice from the Company and the Guarantors of the happening of any event of the kind described in Section 3(a)(vi)(3) or Section 3(a)(vi)(5) hereof or any notice pursuant to
Section 3(d), such Participating Holder will forthwith discontinue disposition of Registrable Securities pursuant to the Shelf Registration Statement until such Participating Holder’s receipt of the copies of the supplemented or amended
Prospectus and any Free Writing Prospectus contemplated by Section 3(a)(x) hereof or notice that the period referred to in Section 3(d) has ended and, if so directed by the Company and the Guarantors, such Participating Holder will deliver
to the Company and the Guarantors all copies in its possession, other than permanent file copies then in such Participating Holder’s possession, of the Prospectus and any Free Writing Prospectus covering such Registrable Securities that is
current at the time of receipt of such notice.
(d) Notwithstanding any other provisions of this Agreement to the contrary, the Company
may postpone effecting an Exchange Offer Registration or a Shelf Registration (or the maintenance of its effectiveness and usability) (i) during the regular quarterly period during which directors and executive officers of the Company are not
permitted to trade under the insider trading policy of the Company then in effect until the expiration of such quarterly period (but in no event later than two Business Days after the date of the Company’s quarterly earnings announcement) and
(ii) for a period of up to 90 days if the Company determines in good faith that such Exchange Offer Registration or a Shelf Registration, as the case may be, would (A) reasonably be expected to materially impede, delay, interfere with or
otherwise have a material adverse effect on any material acquisition of assets (other than in the ordinary course of business), merger, consolidation, tender offer, financing or any other material business transaction by the Company or any of its
subsidiaries or (B) require disclosure of information that has not been disclosed to the public, the disclosure of which would not be in the best interests of the Company. Any such suspensions shall not exceed 180 days in the aggregate during
any 365-day period.
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(e) The Participating Holders who desire to do so may sell such Registrable Securities in an
Underwritten Offering. In any such Underwritten Offering, the investment bank or investment banks and manager or managers (each an “Underwriter”) that will administer the offering will be selected by the Holders of a majority in
principal amount of the Registrable Securities included in such offering and shall be reasonably acceptable to the Company. The Company and the Guarantors shall use commercially reasonable efforts to comply in all material respects with any
reasonable and customary request, including the provision of opinions of counsel, accountants’ comfort letters and officers’ certificates, of the Participating Holders or Underwriters made in connection with such Underwritten Offering to
the extent such request does not create an undue burden or expense for the Company or its subsidiaries. All expenses of the Underwritten Offering (other than Registration Expenses and expenses of the Company and its subsidiaries) shall be borne by
the Participating Holders and the Underwriters, as agreed amongst them.
(f) Each Holder agrees that such Holder shall not take any action
that would result in the Company or Guarantors being required to file with the SEC a free writing prospectus, as defined in Rule 405, as amended, under the Securities Act, prepared by or on behalf of such Holder that otherwise would not be required
to be filed by the Company or Guarantors thereunder, but for the action of such Holder.
4. Participation of Broker-Dealers in Exchange
Offer.
(a) The Staff has taken the position that any broker-dealer that receives Exchange Securities for its own account in the
Exchange Offer in exchange for Securities that were acquired by such broker-dealer as a result of market-making or other trading activities (a “Participating Broker-Dealer”) may be deemed to be an “underwriter” within the
meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Securities.
The Company and the Guarantors understand that it is the Staff’s position that if the Prospectus contained in the Exchange Offer
Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Securities, without naming the Participating Broker-Dealers or specifying
the amount of Exchange Securities owned by them, such Prospectus may be delivered by Participating Broker-Dealers (or, to the extent permitted by law, made available to purchasers) to satisfy their prospectus delivery obligation under the Securities
Act in connection with resales of Exchange Securities for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act.
(b) In light of the above, and subject to Section 3(d), the Company and the Guarantors agree to amend or supplement the Prospectus
contained in the Exchange Offer Registration Statement for a period of up to 90 days after the last Exchange Date, in order to expedite or facilitate the disposition of any Exchange Securities by Participating Broker-Dealers consistent with the
positions of the Staff recited in Section 4(a) above. The Company and the Guarantors further agree that Participating Broker-Dealers shall be
14
authorized, subject to Section 3(d), to deliver such Prospectus (or, to the extent permitted by law, make available) during such period in connection with the resales contemplated by this
Section 4.
(c) The Initial Purchasers shall have no liability to the Company, any Guarantor or any Holder with respect to any
request that they may make pursuant to Section 4(b) hereof.
5. Indemnification and Contribution.
(a) The Company and each Guarantor, jointly and severally, agree to indemnify and hold harmless each Initial Purchaser and each Holder, their
respective affiliates, directors and officers and each Person, if any, who controls any Initial Purchaser or any Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all
losses, claims, damages and liabilities (including, without limitation, reasonable and documented legal fees and other expenses reasonably incurred in connection with any suit, action or proceeding or any claim asserted, as such fees and expenses
are incurred), joint or several, that arise out of, or are based upon, (1) any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary in order to make the statements therein not misleading, or (2) any untrue statement or alleged untrue statement of a material fact contained in any Prospectus or any Free Writing
Prospectus, or any omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, in each case except insofar as such
losses, claims, damages or liabilities arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to any Initial Purchaser or
information relating to any Holder furnished to the Company in writing by or on behalf of such parties. In connection with any Underwritten Offering permitted by Section 3, the Company and the Guarantors, jointly and severally, will also
indemnify the Underwriters, if any, selling brokers, dealers and similar securities industry professionals participating in the distribution, their respective affiliates and each Person who controls such Persons (within the meaning of the Securities
Act and the Exchange Act) to the same extent as provided above with respect to the indemnification of the Holders, if requested in connection with any Registration Statement, any Prospectus or any Free Writing Prospectus.
(b) Each Holder agrees, severally and not jointly, to indemnify and hold harmless the Company, the Guarantors, the Initial Purchasers and the
other selling Holders, and each of the affiliates, directors officers and employees of the Company and the Guarantors and each Person, if any, who controls the Company, the Guarantors, any Initial Purchaser and any other selling Holder within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the indemnity set forth in paragraph (a) above, but only with respect to any losses, claims, damages or liabilities that arise out of,
or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any
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information relating to such Holder furnished to the Company in writing by such Holder expressly for use in any Registration Statement, any Prospectus and any Free Writing Prospectus.
(c) If any suit, action, proceeding (including any governmental or regulatory investigation), claim or demand shall be brought or asserted
against any Person in respect of which indemnification may be sought pursuant to either paragraph (a) or (b) above, such Person (the “Indemnified Person”) shall promptly notify the Person against whom such indemnification
may be sought (the “Indemnifying Person”) in writing; provided that the failure to notify the Indemnifying Person shall not relieve it from any liability that it may have under paragraph (a) or (b) above except to
the extent that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and provided, further, that the failure to notify the Indemnifying Person shall not relieve it from any
liability that it may have to an Indemnified Person otherwise than under paragraph (a) or (b) above. If any such proceeding shall be brought or asserted against an Indemnified Person and it shall have notified the Indemnifying Person
thereof, the Indemnifying Person shall retain counsel reasonably satisfactory to the Indemnified Person (who shall not, without the consent of the Indemnified Person (which consent shall not be unreasonably withheld or delayed), be counsel to the
Indemnifying Person) to represent the Indemnified Person and any others entitled to indemnification pursuant to this Section 5 that the Indemnifying Person may designate in such proceeding and shall pay the fees and expenses of such proceeding
and shall pay the reasonable and documented fees and expenses of such counsel related to such proceeding, as incurred. In any such proceeding, any Indemnified Person shall have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Person unless (i) the Indemnifying Person and the Indemnified Person shall have mutually agreed to the contrary; (ii) the Indemnifying Person has failed within a reasonable time to retain
counsel reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or in addition to those available to the
Indemnifying Person; or (iv) the named parties in any such proceeding (including any impleaded parties) include both the Indemnifying Person and the Indemnified Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is understood and agreed that the Indemnifying Person shall not, in connection with any proceeding or related proceeding in the same jurisdiction, be liable for the fees
and expenses of more than one separate firm (in addition to one local counsel per jurisdiction) for all Indemnified Persons, and that all such fees and expenses shall be reasonable and documented and shall be reimbursed as they are incurred. Any
such separate firm (x) for any Initial Purchaser, its affiliates, directors and officers and any control Persons of such Initial Purchaser shall be designated in writing by the Representatives, (y) for any Holder, its directors and
officers and any control Persons of such Holder shall be designated in writing by the Majority Holders and (z) in all other cases shall be designated in writing by the Company. The Indemnifying Person shall not be liable for any settlement of
any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Person agrees to indemnify each Indemnified Person from and against any loss or liability by
reason of such settlement or judgment. No
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Indemnifying Person shall, without the written consent of the Indemnified Person, effect any settlement of any pending or threatened proceeding in respect of which any Indemnified Person is or
could have been a party and indemnification could have been sought hereunder by such Indemnified Person, unless such settlement (A) includes an unconditional release of such Indemnified Person, in form and substance reasonably satisfactory to
such Indemnified Person, from all liability on claims that are the subject matter of such proceeding and (B) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnified
Person.
(d) If the indemnification provided for in paragraphs (a) and (b) above is unavailable to an Indemnified Person or
insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu of indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable
by such Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company and the Guarantors from the offering of the Securities and
the Exchange Securities, on the one hand, and by the Holders from receiving Securities or Exchange Securities registered under the Securities Act, on the other hand, or (ii) if the allocation provided by clause (i) is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the relative fault of the Company and the Guarantors on the one hand and the Holders on the other in connection
with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative fault of the Company and the Guarantors on the one hand and the Holders on the other
shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company and the Guarantors
or by the Holders and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(e) The Company, the Guarantors and the Holders agree that it would not be just and equitable if contribution pursuant to this Section 5
were determined by pro rata allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in paragraph (d) above.
The amount paid or payable by an Indemnified Person as a result of the losses, claims, damages and liabilities referred to in paragraph (d) above shall be deemed to include, subject to the limitations set forth above, any legal or other
expenses incurred by such Indemnified Person in connection with any such action or claim. Notwithstanding the provisions of this Section 5, in no event shall a Holder be required to contribute any amount in excess of the amount by which the
total price at which the Securities or Exchange Securities sold by such Holder exceeds the amount of any damages that such Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged
omission. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. The Holders’
obligations to contribute pursuant to this Section 5 are several and not joint.
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(f) The remedies provided for in this Section 5 are not exclusive and shall not limit any
rights or remedies that may otherwise be available to any Indemnified Person at law or in equity.
(g) The indemnity and contribution
provisions contained in this Section 5 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of the Initial Purchasers or any Holder or any
Person controlling any Initial Purchaser or any Holder, or by or on behalf of the Company or the Guarantors or the officers or directors of or any Person controlling the Company or the Guarantors, (iii) acceptance of any of the Exchange
Securities and (iv) any sale of Registrable Securities pursuant to a Shelf Registration Statement.
6. General.
(a) No Inconsistent Agreements. The Company and the Guarantors represent, warrant and agree that (i) the rights granted to the
Holders hereunder do not in any way conflict in any material respect with and are not inconsistent with the rights granted to the holders of any other outstanding securities issued or guaranteed by the Company or any Guarantor under any other
agreement and (ii) neither the Company nor any Guarantor has entered into, or on or after the date of this Agreement will enter into, any agreement that is inconsistent with the rights granted to the Holders of Registrable Securities in this
Agreement or otherwise conflicts in any material respect with the provisions hereof.
(b) Amendments and Waivers. The provisions of
this Agreement, including the provisions of this sentence, may not be amended, modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given unless the Company and the Guarantors have obtained the
written consent of Holders of at least a majority in aggregate principal amount of the outstanding Registrable Securities affected by such amendment, modification, supplement, waiver or consent; provided that, with respect to any amendment,
modification supplement, waiver or consent to Section 5 above that directly or indirectly affects the rights of any Initial Purchaser hereunder, the Company and the Guarantors shall obtain the written consent of each such Initial Purchaser
against which such amendment, modification, supplement, waiver or consent is to be effective. Any amendments, modifications, supplements, waivers or consents pursuant to this Section 6(b) shall be by a writing executed by each of the parties
hereto.
(c) Notices. All notices and other communications provided for or permitted hereunder shall be made in writing by
hand-delivery, registered first-class mail, telecopier, or any courier guaranteeing overnight delivery (i) if to a Holder, at the most current address given by such Holder to the Company by means of a notice given in accordance with the
provisions of this Section 6(c), which address initially is, with respect to the Initial Purchasers, the address set forth in the Purchase Agreement; (ii) if to the Company and the Guarantors, initially at the address set forth in the
Purchase Agreement and thereafter at such other address, notice of which is given in accordance with the provisions of this Section 6(c); and (iii) to such other persons at their respective addresses as provided in the Purchase Agreement
and thereafter at such other address, notice of which is given in accordance with the provisions of this Section 6(c). All such
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notices and communications 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 is acknowledged, if telecopied; and on the next Business Day if timely delivered to an air courier guaranteeing overnight delivery. Copies of all such notices, demands or other communications shall be concurrently delivered
by the Person giving the same to the Trustee, at the address specified in the Indenture.
(d) Successors and Assigns. This
Agreement shall inure to the benefit of and be binding upon the successors, assigns and transferees of each of the parties, including, without limitation and without the need for an express assignment, subsequent Holders; provided that
nothing herein shall be deemed to permit any assignment, transfer or other disposition of Registrable Securities in violation of the terms of the Purchase Agreement or the Indenture. If any transferee of any Holder shall acquire Registrable
Securities in any manner, whether by operation of law or otherwise, such Registrable Securities shall be held subject to all the terms of this Agreement, and by taking and holding such Registrable Securities such Person shall be conclusively deemed
to have agreed to be bound by and to perform all of the terms and provisions of this Agreement and such Person shall be entitled to receive the benefits hereof. The Initial Purchasers (in their capacity as Initial Purchasers) shall have no liability
or obligation to the Company or the Guarantors with respect to any failure by a Holder to comply with, or any breach by any Holder of, any of the obligations of such Holder under this Agreement.
(e) Third Party Beneficiaries. Each Holder shall be a third party beneficiary to the agreements made hereunder (excluding those
agreements made in Section 5 hereto) between the Company and the Guarantors, on the one hand, and the Initial Purchasers, on the other hand, and shall have the right to enforce such agreements directly to the extent it deems such enforcement
necessary or advisable to protect its rights or the rights of other Holders hereunder.
(f) Counterparts. This
Agreement may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same
agreement.
(g) Headings. The headings in this Agreement are for convenience of reference only, are not a part of
this Agreement and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. This Agreement, and
any claim, controversy or dispute arising under or related to this Agreement, shall be governed by and construed in accordance with the internal laws of the State of New York.
(i) Submission to Jurisdiction; Appointment of Agent for Service. (i) The Company and the Guarantors irrevocably submit to the
non-exclusive jurisdiction of any New York State or United States Federal court sitting in The City of New York (the “Specified Courts”) over any suit, action or proceeding arising out of or relating to this
19
Agreement (each, a “Related Proceeding”). The Company and Guarantors irrevocably waive, to the fullest extent permitted by law, any objection that it may now or hereafter have to
the laying of venue of any Related Proceeding brought in such a court and any claim that any such Related Proceeding brought in such a court has been brought in an inconvenient forum. To the extent that the Company and the Guarantor has or hereafter
may acquire any immunity (on the grounds of sovereignty or otherwise) from the jurisdiction of any court or from any legal process with respect to itself or its property, the Company and the Guarantors irrevocably waive, to the fullest extent
permitted by law, such immunity in respect of any such suit, action or proceeding.
(ii) The Company hereby irrevocably
appoints Corporation Service Company, with offices at 80 State Street, Albany, New York 12207-2543, as its agent for service of process in any Related Proceeding and agrees that service of process in any such Related Proceeding may be made upon it
at the office of such agent. The Company waives, to the fullest extent permitted by law, any other requirements of or objections to personal jurisdiction with respect thereto. The Company represents and warrants that such agent has agreed to act as
the Company’s agent for service of process, and the Company 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.
(j) Entire Agreement; Severability. This Agreement contains the entire agreement between the parties relating to the subject
matter hereof and supersedes all oral statements and prior writings with respect thereto. If any term, provision, covenant or restriction contained in this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable
or against public policy, the remainder of the terms, provisions, covenants and restrictions contained herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated. The Company, the Guarantors and the Initial
Purchasers shall endeavor in good faith negotiations to replace the invalid, void or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, void or unenforceable provisions.
[Signatures on following pages]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
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| MYLAN N.V., |
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| By: |
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/s/ Colleen Ostrowski |
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Name: Colleen Ostrowski |
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Title: Senior Vice President and Treasurer |
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| MYLAN INC., |
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| By: |
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/s/ Colleen Ostrowski |
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Name: Colleen Ostrowski |
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Title: Senior Vice President and Treasurer |
[Registration Rights
Agreement]
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| Confirmed and accepted as of the date first above written for themselves and on behalf of the several Initial Purchasers: |
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| GOLDMAN, SACHS & CO. |
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| By: |
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/s/ Adam Greene |
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Name: |
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Adam Greene |
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Title: |
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Vice President |
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| DEUTSCHE BANK SECURITIES INC. |
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| By: |
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/s/ Jack McCabe |
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Name: |
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Jack McCabe |
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Title: |
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Managing Director, Investment Grade Debt Capital Markets |
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| By: |
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/s/ Jared Birnbaum |
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Name: |
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Jared Birnbaum |
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Title: |
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Managing Director, Investment Grade Debt Capital Markets |
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| MITSUBISHI UFJ SECURITIES (USA), INC. |
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| By: |
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/s/ Vincent Crescitelli |
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Name: |
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Vincent Crescitelli |
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Title: |
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Executive Director |
[Registration Rights
Agreement]
Mylan NV (NASDAQ:MYL)
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