UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 6-K
REPORT OF FOREIGN PRIVATE ISSUER
PURSUANT TO RULE 13A-16 OR 15D-16
OF THE SECURITIES EXCHANGE ACT OF 1934
For the month of December 2023
Commission File Number: 001-39240
GFL Environmental Inc.
(Translation of registrant’s name into
English)
100 New Park Place, Suite 500
Vaughan, Ontario, Canada L4K 0H9
(Address of principal executive office)
Indicate by check mark whether the registrant files or will file annual
reports under cover Form 20-F or Form 40-F.
Indicate by check mark if the registrant is submitting the Form 6-K
in paper as permitted by Regulation S-T Rule 101(b)(1): ¨
Indicate by check mark if the registrant is submitting the Form 6-K
in paper as permitted by Regulation S-T Rule 101(b)(7): ¨
On December 6, 2023, GFL Environmental Inc. (the “Company”)
completed its previously announced offering of US$1,000.0 million in aggregate principal amount of 6.750% Senior Secured Notes due 2031
(the “Notes”). The Notes were issued pursuant to an indenture dated as of December 6, 2023 (the “Indenture”) among
the Company, the guarantors from time to time party thereto and Computershare Trust Company, N.A., as trustee and as collateral agent.
The maturity date of the Notes is January 15, 2031. The Notes were offered and sold in the United States only to persons reasonably believed
to be qualified institutional buyers pursuant to Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”),
and outside the United States pursuant to Regulation S under the Securities Act.
The information provided herein is qualified in its entirety by the
terms of the Indenture and Notes. A copy of the Indenture (including the form of Notes) is filed as Exhibit 4.1 hereto, and is incorporated
herein by reference.
EXHIBIT INDEX
The following exhibits are furnished as part of this Current
Report on Form 6-K:
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
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GFL Environmental
Inc. |
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By: |
/s/
Mindy Gilbert |
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Name: |
Mindy
Gilbert |
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Title: |
Executive
Vice President and Chief Legal Officer |
Date: December 7, 2023
Exhibit 4.1
Execution Version
GFL ENVIRONMENTAL INC.
6.750% Senior Secured Notes due 2031
INDENTURE
Dated as of December 6, 2023
Computershare Trust Company, N.A., as Trustee
and Notes Collateral Agent
TABLE OF CONTENTS
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Article I
Definitions and Incorporation by Reference |
1 |
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Section 1.1. | |
Definitions |
1 |
Section 1.2. | |
Other Definitions |
55 |
Section 1.3. | |
Rules of Construction |
57 |
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Article II
THE NOTES |
58 |
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Section 2.1. | |
Form and Dating |
58 |
Section 2.2. | |
Execution and Authentication |
59 |
Section 2.3. | |
Registrar and Paying
Agent |
60 |
Section 2.4. | |
Paying Agent to Hold
Money in Trust |
60 |
Section 2.5. | |
Holder Lists |
61 |
Section 2.6. | |
Transfer and Exchange |
61 |
Section 2.7. | |
Replacement Notes |
75 |
Section 2.8. | |
Outstanding Notes |
75 |
Section 2.9. | |
Temporary Notes |
76 |
Section 2.10. | |
Cancellation |
76 |
Section 2.11. | |
Defaulted Interest |
76 |
Section 2.12. | |
CUSIP Numbers |
76 |
Section 2.13. | |
Calculations |
77 |
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Article III
REDEMPTION |
77 |
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Section 3.1. | |
Notices to Trustee |
77 |
Section 3.2. | |
Selection of Notes to
Be Redeemed |
77 |
Section 3.3. | |
Notice of Redemption |
78 |
Section 3.4. | |
Effect of Notice of Redemption |
79 |
Section 3.5. | |
Deposit of Redemption Price |
79 |
Section 3.6. | |
Notes Redeemed in Part |
80 |
Section 3.7. | |
Optional Redemption |
80 |
Section 3.8. | |
Tax Redemption |
81 |
Section 3.9. | |
Mandatory Redemption |
82 |
Article IV
COVENANTS |
82 |
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Section 4.1. | |
Payment of Notes |
82 |
Section 4.2. | |
Reports |
82 |
Section 4.3. | |
Incurrence of Indebtedness
and Issuance of Disqualified Stock |
84 |
Section 4.4. | |
Restricted Payments |
90 |
Section 4.5. | |
Liens |
98 |
Section 4.6. | |
Dividend and Other Payment
Restrictions Affecting Restricted Subsidiaries |
98 |
Section 4.7. | |
Asset Sales |
100 |
Section 4.8. | |
Transactions With Affiliates |
105 |
Section 4.9. | |
Issuance of Note Guarantees |
108 |
Section 4.10. | |
Designation of Restricted
and Unrestricted Subsidiaries |
108 |
Section 4.11. | |
Change of Control |
109 |
Section 4.12. | |
Maintenance of Office
or Agency for Registration of Transfer, Exchange and Payment of Notes |
112 |
Section 4.13. | |
Appointment to Fill a
Vacancy in the Office of Trustee |
113 |
Section 4.14. | |
Provision as to Paying
Agent |
113 |
Section 4.15. | |
Maintenance of Corporate
Existence |
114 |
Section 4.16. | |
[Reserved] |
114 |
Section 4.17. | |
Compliance Certificate |
114 |
Section 4.18. | |
Taxes |
115 |
Section 4.19. | |
Stay, Extension and Usury
Laws |
115 |
Section 4.20. | |
Covenant Suspension |
115 |
Section 4.21. | |
Additional Amounts |
116 |
Section 4.22. | |
After-Acquired Property |
119 |
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Article V
SUCCESSOR COMPANY |
121 |
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Section 5.1. | |
Amalgamation, Merger,
Consolidation or Sale of Assets |
121 |
Section 5.2. | |
Successor Substituted |
123 |
Article VI
DEFAULTS AND REMEDIES |
123 |
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Section 6.1. | |
Events of Default |
123 |
Section 6.2. | |
Acceleration of Maturity;
Rescission and Annulment |
126 |
Section 6.3. | |
Other Remedies |
126 |
Section 6.4. | |
Waiver of Past Defaults |
126 |
Section 6.5. | |
Control by Majority |
127 |
Section 6.6. | |
Limitation on Suits |
127 |
Section 6.7. | |
Rights of Holders to
Receive Payment |
127 |
Section 6.8. | |
Collection Suit by Trustee |
128 |
Section 6.9. | |
Trustee May File
Proofs of Claim |
128 |
Section 6.10. | |
Priorities |
128 |
Section 6.11. | |
Undertaking for Costs |
129 |
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Article VII
TRUSTEE |
129 |
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Section 7.1. | |
Duties of Trustee |
129 |
Section 7.2. | |
Rights of Trustee |
130 |
Section 7.3. | |
Individual Rights of
Trustee |
131 |
Section 7.4. | |
Trustee’s Disclaimer |
131 |
Section 7.5. | |
Notice of Defaults |
132 |
Section 7.6. | |
Compensation and Indemnity |
132 |
Section 7.7. | |
Replacement of Trustee |
133 |
Section 7.8. | |
Successor Trustee by
Merger |
134 |
Section 7.9. | |
Eligibility; Disqualification |
134 |
Section 7.10. | |
Preferential Collection
of Claims Against Company |
134 |
Section 7.11. | |
Collateral Documents;
First Lien Intercreditor Agreement |
135 |
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Article VIII
DISCHARGE OF INDENTURE; DEFEASANCE |
135 |
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Section 8.1. | |
Discharge of Liability
on Notes; Defeasance |
135 |
Section 8.2. | |
Conditions to Defeasance |
137 |
Section 8.3. | |
Delivery and Application
of Trust Money |
138 |
Section 8.4. | |
Repayment to Company |
138 |
Section 8.5. | |
Indemnity for Government
Securities |
138 |
Section 8.6. | |
Reinstatement |
139 |
Article IX
AMENDMENTS |
139 |
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Section 9.1. | |
Without Consent of Holders |
139 |
Section 9.2. | |
With Consent of Holders |
140 |
Section 9.3. | |
Revocation and Effect
of Consents |
142 |
Section 9.4. | |
Notation on or Exchange
of Notes |
142 |
Section 9.5. | |
Trustee to Sign Amendments |
142 |
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Article X
NOTE GUARANTEES |
143 |
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Section 10.1. | |
Note Guarantees |
143 |
Section 10.2. | |
Limitation on Liability |
144 |
Section 10.3. | |
Execution and Delivery
of Note Guarantee |
145 |
Section 10.4. | |
Successors and Assigns |
145 |
Section 10.5. | |
No Waiver |
145 |
Section 10.6. | |
Right of Contribution |
145 |
Section 10.7. | |
No Subrogation |
146 |
Section 10.8. | |
Benefits Acknowledged |
146 |
Section 10.9. | |
Modification |
146 |
Section 10.10. | |
Release of Note Guarantees |
146 |
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Article XI
COLLATERAL |
147 |
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Section 11.1. | |
Collateral Documents |
147 |
Section 11.2. | |
Release of Collateral |
148 |
Section 11.3. | |
Suits to Protect the
Collateral |
149 |
Section 11.4. | |
Authorization of Receipt
of Funds by the Trustee Under the Collateral Documents |
150 |
Section 11.5. | |
Purchaser Protected |
150 |
Section 11.6. | |
Powers Exercisable by
Receiver or Trustee |
150 |
Section 11.7. | |
[Reserved] |
150 |
Section 11.8. | |
Notes Collateral Agent |
151 |
Article XII
MISCELLANEOUS |
159 |
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Section 12.1. | |
Notices |
159 |
Section 12.2. | |
Communication by Holders
with Other Holders |
160 |
Section 12.3. | |
Certificate and Opinion
as to Conditions Precedent |
160 |
Section 12.4. | |
Statements Required in
Certificate or Opinion |
160 |
Section 12.5. | |
When Notes Disregarded |
160 |
Section 12.6. | |
Legal Holidays |
161 |
Section 12.7. | |
Governing Law; Submission
to Jurisdiction |
161 |
Section 12.8. | |
Waiver of Jury Trial |
162 |
Section 12.9. | |
Force Majeure |
162 |
Section 12.10. | |
No Personal Liability
of Directors, Officers, Employees and Shareholders |
162 |
Section 12.11. | |
Successors |
162 |
Section 12.12. | |
Multiple Originals; Counterparts |
162 |
Section 12.13. | |
Severability |
163 |
Section 12.14. | |
Table of Contents; Headings |
163 |
Section 12.15. | |
No Adverse Interpretation
of Other Agreements |
163 |
Section 12.16. | |
Acts of Holders |
163 |
Section 12.17. | |
Indemnification for Non-U.S.
Dollar Currency Judgments |
165 |
Section 12.18. | |
Interest Act (Canada) |
165 |
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EXHIBITS | |
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Exhibit A | |
Form of Note for the Issuer’s
6.750% Senior Secured Notes due 2031 |
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Exhibit B | |
Form of Certificate of Transfer |
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Exhibit C | |
Form of Certificate of Exchange |
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Exhibit D | |
Form of Supplemental Indenture
to be Delivered by Subsequent Guarantors |
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THIS INDENTURE, dated as of December 6, 2023,
is among GFL Environmental Inc., a corporation organized under the laws of the Province of Ontario (“Issuer”), the
Guarantors (as defined herein) from time to time party hereto, and Computershare Trust Company, N.A., as trustee (in such capacity, the
“Trustee”) and as collateral agent (in such capacity, the “Notes Collateral Agent”).
WHEREAS, the Issuer has duly authorized the creation
of an issue of US$1,000,000,000 aggregate principal amount of 6.750% Senior Secured Notes due 2031 (the “Initial Notes”);
WHEREAS, the Issuer has duly authorized the execution
and delivery of this Indenture; and
NOW, THEREFORE, in consideration of the premises
and the purchase of the Notes by the Holders (as defined herein), it is mutually covenanted and agreed, for the equal and proportionate
benefit of all Holders, as follows:
Article I
Definitions and Incorporation by Reference
Section 1.1. Definitions.
“144A Global Note” means a
Global Note substantially in the form of Exhibit A bearing the Global Note Legend, the Private Placement Legend and (unless
such legend is no longer required by the provisions of this Indenture) the Canadian Legend, that has the “Schedule of Exchanges
of Interests in the Global Note” attached thereto, and that is deposited with or on behalf of, and registered in the name of,
the Depositary or its nominee, issued in a denomination equal to the outstanding principal amount of the Notes initially sold in reliance
on Rule 144A.
“1933 Act” means the U.S. Securities
Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder.
“1934 Act” means the U.S. Securities
Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder.
“3.500%
2028 Secured Notes” means the Issuer’s 3.500% Senior Secured Notes due 2028 outstanding as of the Issue
Date and issued under the 3.500% 2028 Secured Notes Indenture.
“3.500%
2028 Secured Notes Collateral Agent” means Computershare Trust Company, N.A., as collateral agent for the 3.500%
2028 Secured Notes.
“3.500%
2028 Secured Notes Collateral Documents” means “Collateral Documents” as defined in the 3.500% 2028
Secured Notes Indenture.
“3.500%
2028 Secured Notes Indenture” means the Indenture, dated as of December 21, 2020, among GFL, the guarantors party thereto
and Computershare Trust Company, N.A., as the trustee and as the notes collateral agent, as supplemented or amended from time
to time.
“3.500% 2028 Secured Notes Obligations”
means obligations in respect of the 3.500% 2028 Secured Notes, the 3.500% 2028 Secured Notes Indenture (including the guarantees set
forth therein) and the 3.500% 2028 Secured Notes Collateral Documents relating to the 3.500% 2028 Secured Notes.
“3.500% 2028 Secured Notes Secured Parties”
means “Notes Secured Parties” as defined in the 3.500% 2028 Secured Notes Indenture.
“3.750%
2025 Secured Notes” means the Issuer’s 3.750% Senior Secured Notes due 2028 outstanding as of the Issue
Date and issued under the 3.750% 2025 Secured Notes Indenture.
“3.750%
2025 Secured Notes Collateral Agent” means Computershare Trust Company, N.A., as collateral agent for the 3.750%
2025 Secured Notes.
“3.750%
2025 Secured Notes Collateral Documents” means “Collateral Documents” as defined in the 3.750%
2025 Secured Notes Indenture.
“3.750%
2025 Secured Notes Indenture” means the Indenture, dated as of August 24, 2020, among GFL, the guarantors party thereto
and Computershare Trust Company, N.A., as the trustee and as the notes collateral agent, as supplemented or amended from time
to time.
“3.750% 2025 Secured Notes Obligations”
means obligations in respect of the 3.750% 2025 Secured Notes, the 3.750% 2025 Secured Notes Indenture (including the guarantees
set forth therein) and the 3.750% 2025 Secured Notes Collateral Documents relating to the 3.750% 2025 Secured Notes.
“3.750% 2025 Secured Notes Secured Parties”
means “Notes Secured Parties” as defined in the 3.750% 2025 Secured Notes Indenture.
“4.000% 2028 Unsecured Notes”
means the Issuer’s 4.000% Senior Notes due 2028 outstanding as of the Issue Date and issued under the 4.000% 2028 Unsecured Notes
Indenture.
“4.000% 2028 Unsecured Notes Indenture”
means the Indenture, dated as of November 23, 2020, among the Issuer, the guarantors party thereto and Computershare Trust Company,
N.A., as the trustee, as supplemented or amended from time to time.
“4.250% 2025 Secured Notes”
means the Issuer’s 4.250% Senior Secured Notes due 2025 outstanding as of the Issue Date and issued under the 4.250% 2025 Secured
Notes Indenture.
“4.250% 2025 Secured Notes Collateral
Agent” means Computershare Trust Company, N.A., as collateral agent for the 4.250% 2025 Secured Notes.
“4.250% 2025 Secured Notes Collateral
Documents” means “Collateral Documents” as defined in the 4.250% 2025 Secured Notes Indenture.
“4.250%
2025 Secured Notes Indenture” means the Indenture, dated as of April 29, 2020, among GFL, the guarantors party thereto
and Computershare Trust Company, N.A., as the trustee and as the notes collateral agent, as supplemented or amended from time
to time.
“4.250% 2025 Secured Notes Obligations”
means obligations in respect of the 4.250% 2025 Secured Notes, the 4.250% 2025 Secured Notes Indenture (including the guarantees set
forth therein) and the 4.250% 2025 Secured Notes Collateral Documents relating to the 4.250% 2025 Secured Notes.
“4.250% 2025 Secured Notes Secured Parties”
means “Notes Secured Parties” as defined in the 4.250% 2025 Secured Notes Indenture.
“4.375% 2029 Unsecured Notes”
means the Issuer’s 4.375% Senior Notes due 2029 outstanding as of the Issue Date and issued under the 4.375% 2029 Unsecured Notes
Indenture.
“4.375% 2029 Unsecured Notes Indenture”
means the Indenture, dated as of August 10, 2021, among the Issuer, the guarantors party thereto and Computershare Trust Company,
N.A., as the trustee, as supplemented or amended from time to time.
“4.750% 2029 Unsecured Notes”
means the Issuer’s 4.750% Senior Notes due 2029 outstanding as of the Issue Date and issued under the 4.750% 2029 Unsecured Notes
Indenture.
“4.750% 2029 Unsecured Notes Indenture”
means the Indenture, dated as of June 8, 2021, among the Issuer, the guarantors party thereto and Computershare Trust Company, N.A.,
as the trustee, as supplemented or amended from time to time.
“5.125% 2026 Secured Notes”
means the Issuer’s 5.125% Senior Secured Notes due 2026 outstanding as of the Issue Date and issued under the 5.125% 2026 Secured
Notes Indenture.
“5.125% 2026 Secured Notes Collateral
Agent” means Computershare Trust Company, N.A., as collateral agent for the 5.125% 2026 Secured Notes.
“5.125% 2026 Secured Notes Collateral
Documents” means “Collateral Documents” as defined in the 5.125% 2026 Secured Notes Indenture.
“5.125% 2026 Secured Notes Indenture”
means the Indenture, dated as of December 16, 2019, among GFL, the guarantors party thereto and Computershare Trust Company, N.A.,
as the trustee and as the notes collateral agent, as supplemented or amended from time to time.
“5.125% 2026 Secured Notes Obligations”
means obligations in respect of the 5.125% 2026 Secured Notes, the 5.125% 2026 Secured Notes Indenture (including the guarantees set
forth therein) and the 5.125% 2026 Secured Notes Collateral Documents relating to the 5.125% 2026 Secured Notes.
“5.125% 2026 Secured Notes Secured Parties”
means “Notes Secured Parties” as defined in the 5.125% 2026 Secured Notes Indenture.
“Additional First Lien Collateral Agent”
means the Authorized Representative for the Series of Additional First Lien Obligations that constitutes the largest outstanding
principal amount of any then outstanding Series of Additional First Lien Obligations.
“Additional First Lien Documents”
means, with respect to any Additional First Lien Obligations, the notes, indentures, credit agreements, note purchase agreements, security
documents and other operative agreements evidencing or governing such Indebtedness and the Liens securing such Indebtedness, including
the Additional First Lien Security Documents and each other agreement entered into for the purpose of securing the Additional First Lien
Obligations.
“Additional First Lien Obligations”
means collectively all amounts owing pursuant to the terms of any Series of Additional Senior Class Debt designated as Additional
First Lien Obligations (each such term, as defined in the First Lien Intercreditor Agreement) pursuant to the First Lien Intercreditor
Agreement, including, without limitation, the obligation (including guarantee obligations) to pay principal, premium, interest (including
interest that accrues after the commencement of a case under any bankruptcy law, regardless of whether such interest is an allowed claim
under such bankruptcy case), letter of credit commissions, reimbursement obligations, charges, expenses, fees, attorneys costs, indemnities,
penalties, reimbursements, damages and other amounts payable by a Grantor under any Additional First Lien Document.
“Additional First Lien Secured Party”
means the holders of any Additional First Lien Obligations and any Authorized Representative with respect thereto.
“Additional First Lien Security Document”
means any collateral agreement, security agreement or any other document now existing or entered into after the date hereof that creates
Liens on any assets or properties of any Grantor to secure the Additional First Lien Obligations.
“Additional Notes” means any
Notes (other than the Initial Notes) issued under this Indenture in accordance with Sections 2.2 and 4.3, as part of the
same series as the Initial Notes, to the extent outstanding.
“Additional Senior Class Debt”
means additional Indebtedness the Issuer may incur pursuant to the First Lien Revolving Credit Agreement, First Lien Term Loan Agreement,
the 3.500% 2028 Secured Notes Indenture, the 3.750% 2025 Secured Notes Indenture, the 4.250% 2025 Secured Notes Indenture, the 5.125%
2026 Secured Notes Indenture and this Indenture that is secured on an equal and ratable basis by the Liens securing the First Lien Obligations.
“Affiliate” of any specified
Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such
specified Person. For purposes of this definition, “control,” as used with respect to any Person, means the possession,
directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise. For purposes of this definition, the terms “controlling,”
“controlled by” and “under common control with” have correlative meanings.
“Agent” means any Registrar
or Paying Agent, as the case may be.
“Applicable Authorized Representative”
means, with respect to any Shared Collateral, (i) until the earlier of (x) the Discharge of First Lien Credit Agreement Obligations
and (y) the Non-Controlling Authorized Representative Enforcement Date, the First Lien Revolving Credit Agreement Collateral Agent
acting on the written instructions of the Required First Lien Credit Agreement Secured Parties (or, after the Discharge of the First
Lien Revolving Credit Agreement Obligations, the First Lien Term Loan Collateral Agent acting on the written instructions of the Required
First Lien Term Loan Lenders), (ii) from and after the earlier of (x) the Discharge of First Lien Revolving Credit Agreement
Obligations and (y) the Non-Controlling Authorized Representative Enforcement Date, the First Lien Term Loan Collateral Agent acting
on the written instructions of the Required First Lien Term Loan Agreement Secured Parties, and (iii) from and after the earlier
of (x) the Discharge of First Lien Credit Agreement Obligations and (y) the Non-Controlling Authorized Representative Enforcement
Date, the Major Non-Controlling Authorized Representative.
“Applicable Premium” means,
with respect to any Note on any redemption date, as determined by the Issuer, the greater of:
| (1) | 1.0% of the principal amount of such Note; and |
| (a) | the present value at such redemption date of (i) the redemption
price of such Note, on January 15, 2027 (such redemption price being set forth in Section 3.7
on or after January 15, 2027) plus (ii) all required interest payments due
on the Note through January 15, 2027 (excluding accrued but unpaid interest to the redemption
date), computed using a discount rate equal to the Treasury Rate as of such redemption date
plus 50 basis points; over |
| (b) | the then outstanding principal amount of such Note. |
“Applicable Procedures” means,
with respect to any transfer or exchange of or for beneficial interests in any Global Note, the rules and procedures of the Depositary,
Euroclear or Clearstream that apply to such transfer or exchange.
“Approved Rating Organization”
means (1) each of Moody’s and S&P and (2) if Moody’s or S&P ceases to rate the Notes for reasons outside
of the Issuer’s control, a “nationally recognized statistical rating organization” within the meaning of Section 3(a)(62)
under the 1934 Act selected by the Issuer or any direct or indirect parent of the Issuer as a replacement agency for Moody’s or
S&P, as the case may be.
“Asset Sale” means any of the
foregoing:
| (1) | the sale, lease, conveyance or other disposition of any assets or
rights (including the sale by the Issuer or any Restricted Subsidiary of Equity Interests
in any of the Issuer’s Subsidiaries, but excluding the sale of directors’ qualifying
shares or shares required to be owned by other Persons pursuant to applicable law); and |
| (2) | the issuance of Equity Interests by any of the Issuer’s Restricted
Subsidiaries (but for greater certainty excluding any issuance of Equity Interests by the
Issuer). |
Notwithstanding the preceding, the following items will be deemed
not to be an Asset Sale:
| (1) | any single transaction or series of related transactions that involves
assets having a Fair Market Value of less than $30.0 million; |
| (2) | a sale, lease, conveyance or other disposition of assets between or
among the Issuer and its Restricted Subsidiaries; |
| (3) | an issuance or sale of Equity Interests by a Restricted Subsidiary
to the Issuer or to another Restricted Subsidiary; |
| (4) | any disposition of worn-out, obsolete, retired or otherwise unsuitable
or excess assets or equipment or facilities or of assets or equipment no longer used or useful
(including intellectual property), in each case, in the ordinary course of business; |
| (5) | the sale, lease, conveyance or other disposition of equipment, inventory,
accounts receivable or other assets in the ordinary course of business (including transfers
of assets, revenues or liabilities between or among the Issuer and its Restricted Subsidiaries
in the ordinary course of business for the Fair Market Value thereof); |
| (6) | the sale or other disposition of cash or Cash Equivalents; |
| (7) | any sale, assignment, transfer, conveyance, lease or other disposition
of all or substantially all of the properties or assets of the Issuer and its Restricted
Subsidiaries taken as a whole, in one or more related transactions, to another Person, pursuant
to Section 5.1; |
| (8) | any Restricted Payment that does not violate Section 4.4
and any Permitted Investment; |
| (9) | the creation or perfection of a Lien (but not the sale or other disposition
of any asset subject to such Lien); |
| (10) | the surrender or waiver of contract rights or the settlement, release
or surrender of contract, tort or other claims of any kind; |
| (11) | dispositions of receivables owing to the Issuer or any of its Restricted
Subsidiaries in connection with the compromise, settlement or collection thereof in the ordinary
course of business or in bankruptcy or similar proceedings of the account debtor and exclusive
of factoring or similar arrangements; |
| (12) | the licensing or sublicensing of intellectual property or other general
intangibles and licenses, leases or subleases of other property in the ordinary course of
business and which do not materially interfere with the business of the Issuer and its Restricted
Subsidiaries; |
| (13) | any sale of assets received by the Issuer or any of its Restricted
Subsidiaries upon foreclosure of a Lien; |
| (14) | any sale, issuance or other disposition of Equity Interests in, or
Indebtedness or other securities of, an Unrestricted Subsidiary; |
| (15) | a sale, transfer or other disposition of assets by the Issuer or
any of its Restricted Subsidiaries in connection with a corporate reorganization that is
carried out as a step transaction if: |
| (a) | the step transaction is completed within five Business Days; and |
| (b) | at the completion of the step transaction, such assets are owned by
the Issuer or any of its Restricted Subsidiaries; and |
| (16) | sales, conveyances, transfers and other dispositions of Investments
in joint ventures to the extent required by, or made pursuant to, customary buy/sell or put/call
arrangements between the joint venture parties set forth in joint venture arrangements or
similar binding arrangements. |
In the event that a transaction (or any portion
thereof) meets the criteria of a permitted Asset Sale and would also be a permitted Restricted Payment or Permitted Investment, the Issuer,
in its sole discretion, will be entitled to divide and classify such transaction (or a portion thereof) as an Asset Sale and/or one or
more of the types of permitted Restricted Payments or Permitted Investments.
“Attributable Debt” in respect
of a Sale/Leaseback Transaction means, at the time of determination, the present value of the obligations of the lessee for net rental
payments during the remaining term of the lease included in such Sale/Leaseback Transaction (including during any period for which such
lease has been extended), calculated using a discount rate equal to the rate of interest implicit in such transaction, determined in
accordance with GAAP; provided, however, that if such Sale/Leaseback Transaction results in a Financing Lease Obligation,
the amount of Indebtedness represented thereby will be determined in accordance with the definition of Financing Lease Obligation.
“Authorized Representative”
means, at any time, (i) in the case of any First Lien Revolving Credit Agreement Obligations or the First Lien Revolving Credit
Agreement Secured Parties, the First Lien Revolving Credit Agreement Collateral Agent, (ii) in the case of the First Lien Term Loan
Obligations or the First Lien Term Loan Secured Parties, the First Lien Term Loan Collateral Agent, (iii) in the case of the 3.500%
2028 Secured Notes Obligations or the 3.500% 2028 Secured Notes Secured Parties, the 3.500% 2028 Secured Notes Collateral Agent, (iv) in
the case of the 3.750% 2025 Secured Notes Obligations or the 3.750% 2025 Secured Notes Secured Parties, the 3.750% 2025 Secured Notes
Collateral Agent, (v) in the case of the 4.250% 2025 Secured Notes Obligations or the 4.250% 2025 Secured Notes Secured Parties,
the 4.250% 2025 Secured Notes Collateral Agent, (vi) in the case of the 5.125% 2026 Secured Notes Obligations or the 5.125% 2026
Secured Notes Secured Parties, the 5.125% 2026 Secured Notes Collateral Agent, (vii) in the case of the Notes Obligations or the
Notes Secured Parties, the Notes Collateral Agent and (viii) in the case of any other Series of Additional First Lien Obligations
or Additional First Lien Secured Parties that become subject to the First Lien Intercreditor Agreement after its execution, the collateral
agent (or equivalent) named as authorized representative for such Series in the applicable Joinder Agreement.
“Bankruptcy Law” means the
Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act (Canada), the Winding-Up and Restructuring
Act (Canada), Title 11 of the United States Code, or any other federal, state, provincial or foreign law for the relief of debtors
that are insolvent or bankrupt.
“Beneficial Holders” means
any person who holds a beneficial interest in Global Notes as shown on the books of the Depositary or a Participant of such Depositary.
“Board of Directors” means:
| (1) | with respect to a corporation, the board of directors of the corporation
(or any duly authorized committee thereof); |
| (2) | with respect to a partnership, the board of directors of the corporation
(or the managers or managing members of a limited liability company) that is the general
partner or managing partner of the partnership; |
| (3) | with respect to a limited liability company, the managing member or
members or any controlling committee of managing members thereof; and |
| (4) | with respect to any other Person, the board or committee of such Person
serving a similar function. |
“Board Resolution” means a
copy of a resolution certified by any Officer of the applicable Person to have been duly adopted by the Board of Directors of such Person
and to be in full force and effect on the date of such certification, and delivered to the Trustee.
“Business Day” means a day
other than a Saturday, Sunday or other day on which banking institutions or trust companies in New York, New York or the Province of
Ontario are authorized or required by law to close.
“Canadian Pledge Agreement”
means that certain Canadian Pledge Agreement, dated as of the Issue Date, among the Issuer, the Guarantors that are organized under the
laws of Canada or a province thereof and the Notes Collateral Agent, as amended, restated, amended and restated, supplemented or otherwise
modified from the time to time.
“Canadian Securities Legislation”
means the securities laws of each of the provinces and territories of Canada and the respective regulations, rules, rulings, decisions
and orders made thereunder, together with the multilateral or national instruments and notices issued or adopted by the securities commissions
or securities regulatory authorities in such provinces or territories.
“Canadian Security Agreement”
means that certain Canadian General Security Agreement, dated as of the Issue Date, among the Issuer, the Guarantors that are organized
under the laws of Canada or a province thereof and the Notes Collateral Agent, as amended, restated, amended and restated, supplemented
or otherwise modified from the time to time.
“Canadian Subsidiary” means
any Subsidiary that is organized under the laws of Canada or any province thereof.
“Capitalized Software Expenditures”
means, for any period, the aggregate of all expenditures (whether paid in cash or accrued as liabilities) by the Issuer and the Restricted
Subsidiaries during such period in respect of purchased software or internally developed software and software enhancements that, in
conformity with GAAP, are or are required to be reflected as capitalized costs on the consolidated balance sheet (excluding the footnotes
thereto) of the Issuer and the Restricted Subsidiaries.
“Capital Stock” means:
| (1) | in the case of a corporation, association or other business entity,
any and all shares, interests, participations, rights or other equivalents (however designated
and whether or not voting) of corporate stock; |
| (2) | in the case of a partnership or limited liability company, partnership
or membership interests (whether general or limited); and |
| (3) | any other interest or participation that confers on a Person rights
in, or other equivalents of or interests in, the equity of the issuing Person or otherwise
confers the right to receive a share of the profits and losses of, or distributions of assets
of, the issuing Person, |
but excluding from all of the foregoing any debt
securities including debt securities convertible into or exchangeable for Capital Stock, whether or not such debt securities have any
right of participation with Capital Stock.
“Captive Insurance Subsidiary”
means any Subsidiary of the Issuer that is subject to regulation as an insurance company (or any Subsidiary thereof).
“Cash Contribution Amount”
means the aggregate amount of cash contributions made to the capital of the Issuer or any Guarantor and designated as a “Cash
Contribution Amount” as described in the definition of Contribution Indebtedness. Any amounts designated as a “Cash
Contribution Amount” shall be excluded for purposes of making Restricted Payments under Section 4.4(b) and
clauses Section 4.4(c)(2), (12) and (13) of Section 4.4(c).
“Cash Equivalents” means:
| (1) | Canadian or U.S. dollars, and such other currencies as may be held
by the Issuer or the Restricted Subsidiaries from time to time in the ordinary course of
business; |
| (2) | securities issued by or directly and fully guaranteed or insured by
the federal government of Canada, the U.S., or any member state of the European Union (provided
that such member state has a rating of “A” or higher from S&P,
“A2” or higher from Moody’s, “A” or higher from
Fitch or “A” or higher from DBRS) or any agency or instrumentality thereof
(provided that the full faith and credit of the federal government of Canada, the
United States or the relevant member state of the European Union is pledged in support of
those securities) having maturities of not more than two years from the date of acquisition; |
| (3) | demand accounts, time deposit accounts, bearer deposit notes, certificates
of deposit and eurodollar time deposits with maturities of one year or less from the date
of acquisition, bankers’ acceptances with maturities not exceeding one year, demand
and overnight bank deposits and other similar types of investments routinely offered by commercial
banks or trust companies, in each case, with any bank or trust company that has a rating
of “A” or higher from S&P, “A2” or higher from
Moody’s, “A” or higher from Fitch or “A” or higher
from DBRS; |
| (4) | repurchase obligations for underlying securities of the types described
in clauses (2) and (3) above entered into with any financial institution meeting
the qualifications specified in clause (3) above; |
| (5) | commercial paper having a rating of “P-1” from
Moody’s, “A-1” or higher from S&P, “F-1”
or higher from Fitch (or, if at any time none of Moody’s, S&P or Fitch shall be
rating such obligations, an equivalent rating from another Approved Rating Organization)
or “R-1 (low)” or higher from DBRS and in each case maturing within two
years after the date of acquisition; |
| (6) | readily marketable direct obligations issued by a state of the United
States or a province of Canada or any political subdivision thereof having a rating of “A”
or higher from S&P, “A2” or higher from Moody’s or “A”
or higher from Fitch in each case with maturities not exceeding two years from the date of
acquisition; |
| (7) | Investments with average maturities of 24 months or less from the
date of acquisition in money market funds rated “AAA−” (or the equivalent
thereof) or better by S&P or “Aaa3” (or the equivalent thereof) or
better by Moody’s or “AAA-” (or the equivalent thereof) or better
by Fitch (or, if at any time none of Moody’s, S&P nor Fitch shall be rating such
obligations, an equivalent rating from another Approved Rating Organization); and |
| (8) | money market or investment funds at least 95% of the assets of which
constitute Cash Equivalents of the kinds described in clauses (1) through (7) of
this definition. In the case of Investments made in a country outside the United States,
Cash Equivalents will also include investments of the type and maturity described in clauses
(1) through (8) of this definition of foreign obligors, which Investments or obligors
(or the parents of such obligors) have ratings described in such clauses or equivalent ratings
from comparable foreign rating agencies. |
Notwithstanding the foregoing, Cash Equivalents
will include amounts denominated in currencies other than those set forth in clauses (1) and (2) above; provided that
such amounts are converted into any currency listed in clauses (1) and (2) as promptly as practicable and in any event within
ten Business Days following the receipt of such amounts.
“Cash Management Obligations”
means obligations in respect of cash management services consisting of automated clearing house transactions, controlled disbursement
services, treasury, depositary, overdraft and electronic funds transfer services, foreign exchange facilities, currency exchange transactions
or agreements and options with respect thereto, credit card processing services, credit or debit cards, purchase cards and any indemnity
given in connection with any of the foregoing.
“CFC” means a “controlled
foreign corporation” within the meaning of Section 957 of the Code.
“CFC Holdco” means any Subsidiary
that has no material assets other than Equity Interests in (or Equity Interests and Indebtedness of) one or more Subsidiaries that are
CFCs.
“Change of Control” means the
occurrence of any of the following events:
| (1) | the direct or indirect sale, lease, transfer, conveyance or other
disposition (other than by way of plan of arrangement, merger, amalgamation or consolidation),
in one or a series of related transactions, of all or substantially all of the properties
or assets (including Equity Interests of the Issuer’s Restricted Subsidiaries) of the
Issuer and its Restricted Subsidiaries, taken as a whole, to any Person or group of Persons
acting jointly or in concert (any such group, a “Group”) other than a
Person or Group that is a Permitted Holder; or |
| (2) | the consummation of any transaction (including, without limitation,
any plan of arrangement, merger, amalgamation or consolidation) the result of which is that
any Person or Group (other than a Person or Group that is a Permitted Holder) beneficially
owns, directly or indirectly, more than 50% of the Voting Stock of the Issuer, measured by
voting power rather than number of shares. |
For purposes of this definition, (i) a beneficial
owner of a security includes any Person or Group who, directly or indirectly, through any contract, arrangement, understanding, relationship,
or otherwise has or shares: (A) voting power, which includes the power to vote, or to direct the voting of, such security; and/or
(B) investment power, which includes the power to dispose of, or to direct the disposition of, such security; (ii) a Person
or Group shall not be deemed to have beneficial ownership of securities subject to a stock purchase agreement, merger agreement or similar
agreement until the consummation of the transactions contemplated by such agreement; and (iii) to the extent that one or more regulatory
approvals are required for any of the transactions or circumstances described in clauses (1) or (2) above to become effective
under applicable law and such approvals have not been received before such transactions or circumstances have occurred, such transactions
or circumstances shall be deemed to have occurred at the time such approvals have been obtained and become effective under applicable
law.
Notwithstanding the foregoing, a transaction will
not be deemed to involve a Change of Control if (1) the Issuer becomes a direct or indirect wholly-owned subsidiary of a holding
company and (2)(A) the direct or indirect beneficial owners of the Voting Stock of such holding company immediately following that
transaction are substantially the same as the beneficial owners of the Voting Stock of the Issuer immediately prior to that transaction
or (B) immediately following that transaction no person (other than a holding company satisfying the requirements of this sentence)
is the beneficial owner, directly or indirectly, of more than 50% of the Voting Stock of such holding company.
“Clearstream” means Clearstream
Banking, société anonyme, or any successor securities clearance agency.
“Collateral” means all of the
assets and property of the Issuer or any Guarantor, whether real, personal or mixed or the subject matter of Liens granted under the
Collateral Documents securing or purported to secure any Notes Obligations, other than the Excluded Assets.
“Collateral Agents” mean, collectively,
the Notes Collateral Agent, the First Lien Term Loan Collateral Agent, the First Lien Revolving Credit Agreement Collateral Agent, the
3.500% 2028 Secured Notes Collateral Agent, the 3.750% 2025 Secured Notes Collateral Agent, the 4.250% 2025 Secured Notes Collateral
Agent, the 5.125% 2026 Secured Notes Collateral Agent and any Additional First Lien Collateral Agent.
“Collateral Documents” means
collectively, the Intercreditor Agreements, the U.S. Security Agreement, the Canadian Security Agreement, the U.S. Pledge Agreement,
the Canadian Pledge Agreement, the Intellectual Property Security Agreements, the Mortgages (if any), the Deed of Hypothec, dated on
or about the Issue Date, between the Notes Collateral Agent and the Issuer, each of the mortgages, debentures, charges, collateral assignments,
security agreements, pledge agreements or other similar agreements relating to the Collateral and the Mortgages and instruments filed
and recorded in appropriate jurisdictions to preserve and protect the Liens on the Collateral (including, without limitation, financing
statements under the Uniform Commercial Code of the relevant states and PPSA of the applicable provinces) applicable to the Collateral,
each for the benefit of the Notes Collateral Agent, each as amended, amended and restated, modified, renewed or replaced from time to
time.
“Collateral Requirement”
means, at any time, the requirement that:
(a) the
Notes Collateral Agent shall have received each Collateral Document required to be delivered (i) on the Issue Date pursuant to the
terms of this Indenture or (ii) on such other dates as required pursuant to Sections 4.22 or Section 11.1 or
the Collateral Documents, duly executed by the Issuer and each Guarantor party thereto;
(b) the
Notes Obligations shall have been secured by a first-priority security interest (subject to Liens permitted by Section 4.5)
in (i) all Equity Interests of each Restricted Subsidiary that is a Wholly Owned Canadian Subsidiary or U.S. Subsidiary (other than
any such Subsidiary (x) that is an Immaterial Subsidiary, or (y) described in the following clause (ii)(B)) directly
owned by the Issuer or any Guarantor and (ii) 65% of the issued and outstanding voting Equity Interests (and 100% of the issued
and outstanding non-voting Equity Interests) of, (A) each Restricted Subsidiary that is a CFC and is directly owned by the Issuer
or any Guarantor and (B) each Restricted Subsidiary that is a CFC Holdco (in the case of clauses (A) and (B),
other than a Subsidiary that is an Immaterial Subsidiary);
(c) except
to the extent otherwise provided hereunder or under any Collateral Document, and subject to Liens permitted by Section 4.5
or under any Collateral Document, the Notes Obligations shall have been secured by a valid and perfected security interest in substantially
all tangible and intangible assets of the Issuer and each Guarantor (including accounts receivable, inventory, equipment, investment
property, contract rights, registered intellectual property (including applications for registered intellectual property, but excluding
any “intent-to-use” application for registration of a trademark or service mark filed pursuant to Section 1(b) of
the Lanham Act, 15 U.S.C. § 1051, prior to the filing of a “Statement of Use” pursuant to Section 1(d), or an “Amendment
to Allege Use” pursuant to Section 1(c), of the Lanham Act, to the extent, if any, that, and solely during the period, if
any, in which, the grant of a security interest therein would impair the validity or enforceability of such application under applicable
federal laws), other general intangibles, and solely to the extent required by Section 4.22, Mortgages on Material Real Property
and, in each case, proceeds of the foregoing), in each case, with the priority required by the Collateral Documents (to the extent such
security interest may be perfected by delivering certificated securities and or debt instruments, filing any Mortgages in the appropriate
filing or land registry office of the county or municipality where the respective mortgaged property is located, filing financing statements
under the Uniform Commercial Code or PPSA or making any necessary filings with the United States Patent and Trademark Office or United
States Copyright Office or the Canadian Intellectual Property Office); and
(e) the
Notes Collateral Agent shall have received counterparts of a Mortgage and other documentation required to be delivered, with respect
to each Material Real Property, if any, pursuant to Section 4.22.
The foregoing definition
shall not require, and the Collateral Documents shall not contain any requirements as to, the creation or perfection of pledges of or
security interests in, mortgages on, or the obtaining of title insurance, surveys, abstracts or appraisals or taking other actions with
respect to, any Excluded Assets. The Notes Collateral Agent may grant extensions of time for the perfection of security interests in
or the delivery of the Mortgages and the obtaining of title insurance, surveys and abstracts with respect to particular assets and the
delivery of assets (including extensions beyond the Issue Date for the perfection of security interests in the assets of the Issuer and
Guarantors) where it reasonably determines, in consultation with the Issuer, that perfection cannot be accomplished without undue effort
or expense by the time or times at which it would otherwise be required by this Indenture or the Collateral Documents; provided
that the Notes Collateral Agent shall be deemed to have made such a reasonable determination if such a determination has already been
made by either the First Lien Revolving Credit Agreement Collateral Agent or the First Lien Term Loan Collateral Agent (with respect
to the First Lien Revolving Credit Agreement or the First Lien Term Loan Credit Agreement, respectively).
Notwithstanding anything to the contrary, there
shall be no requirement for (and no default or event of default under the Collateral Documents shall arise out of the lack of) (A) actions
in, or required by the laws of, any jurisdiction other than the United States (or any state thereof or the District of Columbia) or Canada
(or any province thereof) in order to create, perfect or maintain any security interests in any assets (including, without limitation,
any intellectual property registered outside the United States or Canada and all real property located outside the United States or Canada)
(it being understood that there shall be no security agreements, pledge agreements or similar security documents governed by the laws
of any jurisdiction outside the United States or Canada) and (B) actions required to be taken to perfect by “control”
with respect to any Collateral (other than delivery of certificated securities required to be pledged in accordance with clause (c) of
this definition), including control agreements or similar agreements in respect of any deposit accounts, securities accounts, commodities
accounts or other bank accounts.
“Commission” means the U.S.
Securities and Exchange Commission.
“Commodity Hedging Contracts”
means any transaction, arrangement or agreement entered into between a Person (or any of its Restricted Subsidiaries) and a counterparty
on a case by case basis, including any futures contract, a commodity option, a swap, a forward sale or otherwise, the purpose of which
is to mitigate, manage or eliminate its exposure to fluctuations in commodity prices, transportation or basis costs or differentials
or other similar financial factors including contracts settled by physical delivery of the commodity not settled within 60 days of the
date of any such contract.
“Consolidated Depreciation and Amortization
Expense” means, with respect to any Person for any period, the total amount of depreciation, amortization and depletion and
accretion expense, including amortization or write-off of intangibles and non-cash organization costs and of deferred financing fees
or costs and Capitalized Software Expenditures, of such Person, including the amortization of deferred financing fees or costs for such
period on a consolidated basis and otherwise determined in accordance with GAAP and the amortization of original issue discount resulting
from the issuance of Indebtedness at less than par, and any write down of assets or asset value carried on the balance sheet.
“Consolidated EBITDA” means,
with respect to any Person for any period, Consolidated Net Income for such period:
(a) increased
by (without duplication, and as determined in accordance with GAAP to the extent applicable):
| (1) | solely to the extent such amounts were deducted in computing Consolidated
Net Income, (A) provision for taxes based on income or profits or capital, plus state,
provincial, franchise, property or similar taxes and foreign withholding taxes and foreign
unreimbursed value added taxes, of such Person for such period (including, in each case,
penalties and interest related to such taxes or arising from tax examinations) deducted in
computing such Consolidated Net Income and (B) amounts paid to the Issuer or any direct
or indirect parent of the Issuer in respect of taxes in accordance with Section 4.4(c)(18);
plus |
| (2) | (A) total interest expense of such Person and, to the extent
not reflected in such total interest expense, any net losses on hedging obligations or other
derivative instruments entered into for the purpose of hedging interest rate risk, and (B) bank
fees and costs owed with respect to letters of credit, bankers acceptances and surety bonds,
in each case under this clause (B), in connection with financing activities and, in each
case under clauses (A) and (B), to the extent the same were deducted in computing Consolidated
Net Income; plus |
| (3) | Consolidated Depreciation and Amortization Expense of such Person
for such period to the extent such expenses were deducted in computing Consolidated Net Income;
plus |
| (4) | any (A) transaction expenses and (B)(I) reasonable fees,
costs, expenses or charges incurred in connection with (x) any issuance or offering
of Equity Interests (including any initial public offering), Investment, acquisition
(including any costs incurred in connection with any acquisition or any other Investment
permitted under this Indenture whether occurring before or after the Issue Date), non-ordinary
course disposition, recapitalization or the issuance, incurrence, redemption, exchange or
repayment of Indebtedness (including, with respect to Indebtedness, a refinancing thereof),
including any costs and expenses relating to any registration statement, or registered exchange
offer, in respect of any Indebtedness permitted hereunder, (y) any amendment, waiver,
consent or modification to any documentation governing the terms of any transaction described
in the immediately preceding subclause (x) or (z) any amendment, waiver, consent
or modification to any document governing any Indebtedness, in each case under subclauses
(x), (y) and (z), whether or not such transaction or amendment, waiver, consent or modification
is successful and (II) fees, costs, expenses and charges to the extent payable or reimbursable
by third parties, pursuant to indemnification provisions, in each case, deducted in computing
Consolidated Net Income; plus |
| (5) | to the extent deducted in calculating Consolidated Net Income, any
charges, losses or expenses related to signing, retention, relocation, recruiting or completion
bonuses or recruiting costs, severance costs, transition costs, curtailments or modifications
to pension and post-retirement employee benefit plans (including any settlement of pension
liabilities), pre-opening, opening, closing and consolidation costs and expenses with respect
to any New Projects, facilities, facility start-up costs, costs and expenses relating to
implementation of operational and reporting systems and technology initiatives, costs incurred
in connection with product and intellectual property development and new systems design,
project start-up costs, integration and systems establishment costs, business optimization
expenses or costs (including costs and expenses relating to intellectual property restructurings)
and cash restructuring charges, expenses and reserves and expenses attributable to the implementation
of cost savings initiatives, costs associated with tax projects/audits and costs consisting
of professional consulting or other fees relating to any of the foregoing; plus |
| (6) | accretion of asset retirement obligations; plus |
| (7) | any other non-cash charges, expenses, losses or items, including any
write offs or write downs, reducing such Consolidated Net Income for such period (provided
that if any such non-cash charges represent an accrual or reserve for potential cash
items in any future period, (1) the Issuer may determine not to add back such non-cash
charge in the current period and (2) to the extent the Issuer does decide to add back
such non-cash charge, the cash payment in respect thereof in such future period shall be
subtracted from Consolidated EBITDA to such extent, and excluding amortization of a prepaid
cash item that was paid in a prior period); plus |
| (8) | the amount of any minority interest expense or non-controlling interest
consisting of Subsidiary income attributable to minority equity interests of third parties
in any non-Wholly Owned Subsidiary deducted in calculating Consolidated Net Income; plus |
| (9) | the amount of fees, out-of-pocket costs, indemnities and expenses
paid or accrued in such period to any Permitted Holder or any of their Affiliates to the
extent permitted under Section 4.8 and deducted in such period in computing Consolidated
Net Income; plus |
| (10) | the amount of any net loss from operations expected to be disposed
of, abandoned or discontinued within twelve months after the end of such period; plus |
| (11) | the amount of “run rate” cost savings, operating expense
reductions and synergies related to the Waste Industries Transactions, any Specified Transactions,
any restructurings, cost savings initiatives and other initiatives (without duplication of
any pro forma amounts added back in connection with a Specified Transaction or entry into
an Municipal Waste Contract or Put-or-Pay Agreement) projected by the Issuer in good faith
to result from actions taken, committed to be taken or expected to be taken no later than
twenty-four (24) months after the end of such period (which “run rate” cost savings,
operating expense reductions and synergies shall be calculated on a pro forma basis as though
such “run rate” cost savings, operating expense reductions and synergies had
been realized on the first day of the period for which Consolidated EBITDA is being determined
and realized during the entirety of such period and each subsequent period through the period
ending on the last day of the eighth fiscal quarter commencing after the end of the fiscal
quarter in which such pro forma adjustment was originally made, and without duplication of
any pro forma adjustment for any such subsequent period that would otherwise be permitted
under this clause (11) with respect to the same cost savings, operating expense reductions
and synergies), net of the amount of actual benefits realized during such period from such
actions; provided that such “run rate” cost savings, operating expense
reductions and synergies are reasonably identifiable and factually supportable (in the good
faith determination of the Issuer) (it being understood that pro forma adjustments need not
be prepared in compliance with Regulation S-X); plus |
| (12) | to the extent reducing such Consolidated Net Income, any costs or
expenses incurred by the Issuer or a Restricted Subsidiary pursuant to any management equity
plan or stock option plan or any other management or employee benefit plan or agreement or
any stock subscription or stockholders agreement, to the extent that such costs or expenses
are funded with cash proceeds contributed to the capital of the Issuer or net cash proceeds
of issuance of Equity Interests of the Issuer (other than Disqualified Stock), in each case,
solely to the extent that such cash proceeds are excluded from the calculation of the amount
available for Restricted Payments under Section 4.4(b)(3)(A) and have not
been used as an Excluded Contribution; plus |
| (13) | the amount of any loss attributable to a New Project, until the date
that is 12 months after the date of completing the construction, acquisition, assembling
or creation of such New Project, as the case may be; provided that (a) such losses
are reasonably identifiable and factually supportable and certified by a responsible officer
of the Issuer and (b) losses attributable to such New Project after 12 months from the
date of completing such construction, acquisition, assembling or creation, as the case may
be, shall not be included in this clause (13); plus |
| (14) | to the extent deducted in calculating Consolidated Net Income, Specified
Legal Expenses in an amount not to exceed $5.0 million for the applicable four quarter period;
plus |
| (15) | accruals and reserves that are established or adjusted within 12
months after the closing of any acquisition that are so required as a result of such acquisition
in accordance with GAAP, or changes as a result of the adoption or modification of accounting
policies, whether effected through a cumulative effect adjustment, restatement or a retroactive
application; plus |
| (16) | without duplication, adjustments of the nature used in connection
with the calculation of “Adjusted EBITDA” or “Run-Rate EBITDA”
as set forth in footnote 3 of “Summary— Summary Historical and As Adjusted
Financial Information” contained in the Offering Memorandum applied in good faith
to the extent such adjustments continue to be applicable during the period in which Consolidated
EBITDA is being calculated; and |
(b) decreased by (without duplication, and as determined
in accordance with GAAP to the extent applicable) any non-cash gains increasing Consolidated Net Income of such Person for such period,
excluding any gains that represent the reversal of any accrual of, or cash reserve for, anticipated cash charges in any prior period
(other than such cash charges that have been added back to Consolidated Net Income in calculating Consolidated EBITDA in accordance with
this definition).
For the avoidance of doubt, Consolidated EBITDA shall be calculated,
including pro forma adjustments.
“Consolidated Interest Expense”
means, for any period, the total interest expense of the Issuer and its Restricted Subsidiaries determined on a consolidated basis in
accordance with GAAP (excluding any accretion or accrual of discounted liabilities not constituting Indebtedness), plus, to the extent
not included in such total interest expense, and to the extent incurred by the Issuer and its Restricted Subsidiaries (determined on
a consolidated basis in accordance with GAAP), without duplication:
| (1) | the amortization of debt discount and debt issuance costs; plus |
| (2) | the amortization of all fees (including, without limitation, fees
with respect to Hedging Obligations) payable in connection with the incurrence of Indebtedness;
plus |
| (3) | interest payable on Financing Lease Obligations; plus |
| (4) | payments in the nature of interest pursuant to Hedging Obligations;
plus |
| (5) | interest accruing on any Indebtedness of any other Person, to the
extent such Indebtedness is guaranteed by, or secured by a Lien on any asset of, the Issuer
or any of its Restricted Subsidiaries. |
Notwithstanding the foregoing, the interest component
of any lease that is a Non-Financing Lease Obligation will not be included in Consolidated Interest Expense. For purposes of this definition,
interest on a Financing Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by such Person to be the
rate of interest implicit in such Financing Lease Obligation in accordance with GAAP.
“Consolidated Net Income” means,
with respect to any Person for any period, the aggregate of the Net Income of such Person and its Subsidiaries for such period determined
on a consolidated basis in conformity with GAAP; provided, however, that, without duplication:
| (1) | any net after-tax extraordinary, non-recurring or unusual gains or
losses, charges or expenses, transaction expenses, severance costs and expenses and one-time
compensation charges shall be excluded; |
| (2) | the Net Income for such period shall not include the cumulative effect
of a change in accounting principles during such period, whether effected through a cumulative
effect adjustment or a retroactive application, in each case in accordance with GAAP; |
| (3) | effects of adjustments (including the effects of such adjustments
pushed down to the Issuer and its Subsidiaries) in such Person’s consolidated financial
statements pursuant to GAAP (including in the property and equipment, software, goodwill,
intangible assets, deferred revenue and debt line items thereof) resulting from the application
of recapitalization accounting or purchase accounting, as the case may be, in relation to
any consummated acquisition or the amortization or write-off of any amounts thereof (including
any write-off of in process research and development), net of taxes, shall be excluded; |
| (4) | any net after-tax income (loss) from disposed, abandoned, transferred,
closed or discontinued operations and any net after-tax gains or losses on disposal of disposed,
abandoned, transferred, closed or discontinued operations shall be excluded; |
| (5) | any net after-tax gains or losses (less all fees and expenses relating
thereto) attributable to asset sales or other dispositions or impairments or the sale or
other disposition of any Equity Interests of any Person, in each case, other than in the
ordinary course of business, as determined in good faith by the Issuer, shall be excluded; |
| (6) | the Net Income for such period of any Person that is not a Subsidiary,
or is an Unrestricted Subsidiary, or that is accounted for by the equity method of accounting,
shall be excluded; provided that the Issuer’s or any Restricted Subsidiary’s
equity in the Net Income of such Person or Unrestricted Subsidiary shall be included in the
Consolidated Net Income of the Issuer or such Restricted Subsidiary up to the aggregate amount
of dividends or distributions or other payments that are actually paid in cash (or to the
extent converted into cash) by such Person or Unrestricted Subsidiary to the Issuer or a
Restricted Subsidiary in respect of such period; |
| (7) | solely for the purpose of determining the amount available for Restricted
Payments under Section 4.4(b)(3)(A), the Net Income for such period of any Restricted
Subsidiary (other than any Subsidiary Guarantor) shall be excluded to the extent the declaration
or payment of dividends or similar distributions by that Restricted Subsidiary of its Net
Income is not at the date of determination permitted without any prior governmental approval
(which has not been obtained) or, directly or indirectly, by the operation of the terms of
its charter or any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to that Restricted Subsidiary or its equity holders, unless
such restriction with respect to the payment of dividends or similar distributions has been
legally waived; provided that Consolidated Net Income of the Issuer will be increased
by the amount of dividends or other distributions or other payments actually paid in cash
(or to the extent converted into cash) to the Issuer or a Restricted Subsidiary thereof in
respect of such period, to the extent not already included therein; |
| (8) | (i) any net unrealized gain or loss (after any offset) resulting
in such period from obligations in respect of Hedging Obligations and the application of
Accounting Standards for Private Enterprises, CPA Handbook—Part II, Section 3856
or any ineffectiveness recognized in earnings related to qualifying hedge transactions or
the fair value of changes therein recognized in earnings for derivatives that do not qualify
as hedge transactions, in each case, in respect of Hedging Obligations, (ii) any net
gain or loss resulting in such period from currency translation gains or losses related to
currency re-measurements of Indebtedness (including the net loss or gain resulting from Hedging
Obligations for currency exchange risk) and all other foreign currency translation gains
or losses, and (iii) any net after-tax income (loss) for such period attributable to
the early extinguishment or conversion of (A) Indebtedness, (B) obligations under
any Hedging Obligations or (C) other derivative instruments and all deferred financing
costs written off or amortized and premiums paid or other expenses incurred directly in connection
therewith, shall be excluded; |
| (9) | any goodwill or impairment charge or asset write-off or write-down,
including impairment charges or asset write-offs or write-downs related to intangible assets,
long-lived assets, investments in debt and equity securities or as a result of a change in
law or regulation, in each case pursuant to GAAP, the amortization of intangibles arising
pursuant to GAAP and the amortization of Capitalized Software Expenditures, shall be excluded; |
| (10) | any expenses, charges or losses that are covered by indemnification
or other reimbursement provisions in connection with any acquisition, Investment, acquisitions
completed prior to the Issue Date or any sale, conveyance, transfer or other disposition
of assets permitted under this Indenture or that are consummated prior to the Issue Date,
to the extent actually reimbursed, or, so long as the Issuer has made a determination that
a reasonable basis exists for indemnification or reimbursement and only to the extent that
such amount is in fact indemnified or reimbursed within 365 days of such determination (with
a deduction in the applicable future period for any amount so added back to the extent not
so indemnified or reimbursed within such 365 days), shall be excluded; |
| (11) | to the extent covered by insurance and actually reimbursed, or, so
long as the Issuer has made a determination that a reasonable basis exists that such amount
will in fact be reimbursed within 365 days of the date of such determination (with a deduction
in the applicable future period for any amount so added back to the extent not so reimbursed
within such 365 days), expenses, charges or losses with respect to liability or casualty
events shall be excluded; |
| (12) | any non-cash compensation charge or expense, including any such charge
or expense arising from the grants of stock appreciation or similar rights, stock options,
restricted stock or other rights or equity incentive programs shall be excluded; |
| (13) | any income (loss) attributable to deferred compensation plans or
trusts and any non-cash deemed finance charges in respect of any pension liabilities or other
provisions or on the revaluation of any benefit plan obligation shall be excluded; |
| (14) | proceeds from any business interruption insurance, to the extent
not already included in Consolidated Net Income, shall be included; |
| (15) | the amount of any expense to the extent a corresponding amount relating
to such expense is received in cash by the Issuer and the Restricted Subsidiaries from a
Person other than the Issuer or any Restricted Subsidiaries; provided such amount
received has not been included in determining Consolidated Net Income, shall be excluded
(it being understood that if the amounts received in cash under any such agreement in any
period exceed the amount of expense in respect of such period, such excess amounts received
may be carried forward and applied against expense in future periods); |
| (16) | any adjustments resulting from the application of Accounting Standards
for Private Enterprises, CPA Handbook—Part II, Accounting Guideline 14, or any
comparable regulation, shall be excluded; and |
| (17) | earn-out and contingent consideration obligations (including adjustments
thereof and purchase price adjustments) incurred in connection with any acquisition or other
Investment, and any acquisitions completed prior to the Issue Date, shall be excluded. |
“Consolidated Net Leverage Ratio”
means, as of any date of determination, the ratio of (1)(i)(x) the total consolidated Indebtedness of the Issuer and its Restricted
Subsidiaries as of such date of calculation (determined on a consolidated basis in accordance with GAAP) and (y) the Reserved Indebtedness
Amount with respect to commitments first obtained as of such date but not utilized as of such date (but only to the extent such commitments
are being obtained in reliance on a test based on such ratio and the Issuer has so elected to test such ratios at such time) minus (ii) the
sum of (x) cash and Cash Equivalents of the Issuer and its Restricted Subsidiaries as of such date of calculation plus (y) any
cash in a trust account of counsel to the Issuer or any of its Restricted Subsidiaries or counsel of a vendor in connection with the
deposit of an amount on account of the purchase price for an acquisition or investment and (2) Consolidated EBITDA of the Issuer
and its Restricted Subsidiaries for such period. In the event that the Issuer or any of its Restricted Subsidiaries incurs or redeems
any Indebtedness subsequent to the commencement of the period for which the Consolidated Net Leverage Ratio is being calculated but prior
to the event for which the calculation of the Consolidated Net Leverage Ratio is made, then the Consolidated Net Leverage Ratio shall
be calculated giving pro forma effect to such incurrence or redemption of Indebtedness as if the same had occurred at the beginning of
the applicable four fiscal quarter period. The Consolidated Net Leverage Ratio shall be calculated in a manner consistent with the definition
of Fixed Charge Coverage Ratio, including any pro forma adjustments to Indebtedness, cash and Cash Equivalents and Consolidated EBITDA
as set forth therein (including for acquisitions).
“continuing” means, with respect
to any Default or Event of Default, that such Default or Event of Default has not been cured or waived.
“Contribution Indebtedness”
means Indebtedness of the Issuer or any Restricted Subsidiary in an aggregate principal amount not greater than 200% of the aggregate
amount of cash contributions (other than Excluded Contributions) made to the capital of the Issuer after the Issue Date and designated
as a Cash Contribution Amount.
“Controlling
Collateral Agent” means, with respect to any Shared Collateral, (1) until the earlier of (a) the Discharge
of First Lien Revolving Credit Agreement Obligations and (b) the Non-Controlling Authorized Representative Enforcement Date, the
First Lien Revolving Credit Agreement Collateral Agent acting on the written instructions of the Required First Lien Credit Agreement
Secured Parties, (2) from and after the earlier of (a) the Discharge of First Lien Revolving Credit Agreement Obligations and
(b) the Non-Controlling Authorized Representative Enforcement Date, the First Lien Term Loan Collateral Agent acting on the written
instructions of the Required First Lien Term Loan Lenders, and (3) from and after the earlier of (a) the Discharge of First
Lien Credit Agreement Obligations and (b) the Non-Controlling Authorized Representative Enforcement Date, the Controlling Collateral
Agent will be the Collateral Agent (other than the First Lien Revolving Credit Agreement Collateral Agent and the First Lien Term Loan
Collateral Agent) of the Series of First Lien Obligations that constitutes the largest outstanding principal amount of any then
outstanding Series of First Lien Obligations (excluding the Series of First Lien Revolving Credit Agreement Obligations and
the Series of First Lien Term Loan Obligations) with respect to such Shared Collateral; provided, that if the Notes Collateral
Agent is the Controlling Collateral Agent, it shall act pursuant to instructions from the Holders of a majority of the Notes outstanding.
With respect to any Shared Collateral, no Non-Controlling
Authorized Representative (as defined in the First Lien Intercreditor Agreement) or other Non-Controlling Secured Party (as defined in
the First Lien Intercreditor Agreement) shall or shall instruct the Controlling Collateral Agent to, commence any judicial or nonjudicial
foreclosure proceedings with respect to, seek to have a trustee, receiver, liquidator or similar official appointed for or over, attempt
any action to take possession of, exercise any right, remedy or power with respect to, or otherwise take any action to enforce its security
interest in or realize upon, or take any other action available to it in respect of, any Shared Collateral.
“Corporate Trust Office” means
the office of the Trustee at which its corporate trust business relating to this Indenture shall be administered, which office at the
date hereof is located at 6200 S. Quebec Street Greenwood Village, CO 80111, or such other address as the Trustee may designate from
time to time.
“Credit Agreements” means the
First Lien Revolving Credit Agreement and the First Lien Term Loan Credit Agreement.
“Credit Facilities” means one
or more credit or debt facilities (including, without limitation, under the Credit Agreements, the 3.500% 2028 Secured Notes, the 3.750%
2025 Secured Notes, the 4.250% 2025 Secured Notes, the 5.125% 2026 Secured Notes and the Notes), commercial paper facilities or Debt
Issuances, in each case with banks, investment banks, insurance companies, mutual funds, other institutional lenders or institutional
investors providing for, among other things, revolving credit loans, term loans, term debt, debt securities, receivables financing (including
through the sale of receivables to such lenders, other financiers or to special purpose entities formed to borrow from such lenders or
other financiers against such receivables), letters of credit or letter of credit guarantees, bankers’ acceptances, other borrowings
or Debt Issuances, in each case, as amended, supplemented, restated, modified, renewed, refunded, replaced, restructured, repaid, refinanced
or otherwise modified, in whole or in part, from time to time, and any agreements and related documents governing Indebtedness or obligations
incurred to refinance amounts then outstanding or permitted to be outstanding, whether or not with the original administrative agent,
lenders, investment banks, insurance companies, mutual funds, other institutional lenders or institutional investors and whether provided
under the original agreement, indenture or other documentation relating thereto.
“Crown” means His Majesty in
right of Canada or a province of Canada, and His other realms and territories.
“Currency Agreement” means
any financial arrangement entered into between a Person (or its Restricted Subsidiaries) and a counterparty on a case by case basis in
connection with a foreign exchange futures contract, currency swap agreement, currency option or currency exchange or other similar currency
related transactions, the purpose of which is to mitigate or eliminate its exposure to fluctuations in exchange rates and currency values.
“Custodian” means any receiver,
receiver-manager, trustee, assignee, liquidator, monitor, or similar official under any Bankruptcy Law.
“DBRS” means DBRS Ltd. or any
successor to the rating agency business thereof.
“Debt Issuances” means, with
respect to the Issuer or any Restricted Subsidiary of the Issuer, one or more issuances after the Issue Date of Indebtedness evidenced
by notes, debentures, bonds or other similar securities or instruments.
“Default” means the occurrence
of any event that is, or with the passage of time or the giving of notice or both would be, an Event of Default under this Indenture.
“Definitive Note” means a certificated
Note registered in the name of the Holder thereof and issued in accordance with Section 2.6 hereof, substantially in the
form of Exhibit A, except that such Note shall not bear the Global Note Legend and shall not have the “Schedule of Exchanges
of Interests in the Global Note” attached thereto.
“Depositary” means Cede &
Co. and such other Person as is designated in writing by the Issuer and acceptable to the Trustee to act as depositary in respect of
one or more Global Notes.
“Designated Non-cash Consideration”
means the Fair Market Value (as determined in good faith by the Issuer) of non-cash consideration received by the Issuer or a Restricted
Subsidiary in connection with an Asset Sale that is so designated as Designated Non-cash Consideration pursuant to an Officer’s
Certificate, setting forth such valuation, less the amount of Cash Equivalents received in connection with a subsequent sale of such
Designated Non-cash Consideration.
“Discharge” means, with respect
to any Collateral and any Series of First Lien Obligations, the date on which such Series of First Lien Obligations is no longer
secured by such Collateral. The term “Discharged” shall have a corresponding meaning.
“Discharge of First Lien Credit Agreement
Obligations” means, with respect to any Collateral, both the Discharge of the First Lien Revolving Credit Agreement Obligations
and the Discharge of the First Lien Term Loan Obligations with respect to such Collateral.
“Discharge of First Lien Revolving Credit
Agreement Obligations” means, with respect to any Collateral, the Discharge of the First Lien Revolving Credit Agreement Obligations
with respect to such Collateral; provided that the Discharge of First Lien Revolving Credit Agreement Obligations shall not be
deemed to have occurred in connection with a refinancing of such First Lien Revolving Credit Agreement Obligations with Additional First
Lien Obligations secured by such Collateral under an Additional First Lien Document which has been designated in writing by the Collateral
Agent (under the First Lien Revolving Credit Agreement so refinanced) to the First Lien Term Loan Collateral Agent, the Notes Collateral
Agent and the Additional First Lien Collateral Agent and each other Authorized Representative as the “First Lien Revolving Credit
Agreement” for purposes of the First Lien Intercreditor Agreement.
“Discharge of First Lien Term Loan Obligations”
means, with respect to any Collateral, the Discharge of the First Lien Term Loan Obligations with respect to such Collateral; provided
that the Discharge of First Lien Term Loan Obligations shall not be deemed to have occurred in connection with a refinancing of such
First Lien Term Loan Obligations with Additional First Lien Obligations secured by such Collateral under an Additional First Lien Document
which has been designated in writing by the Collateral Agent (under the First Lien Term Loan Agreement so refinanced) to the First Lien
Revolving Credit Agreement Collateral Agent, the Notes Collateral Agent and the Additional First Lien Collateral Agent and each other
Authorized Representative as the “First Lien Term Loan Agreement” for purposes of the First Lien Intercreditor Agreement.
“Disqualified Stock” means,
with respect to any Person, any Capital Stock that, by its terms (or by the terms of any security into which it is convertible, or for
which it is exchangeable, in each case at the option of the holder of the Capital Stock), or upon the happening of any event, matures
or is mandatorily redeemable pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder of the Capital
Stock, in whole or in part, prior to the Stated Maturity of the principal of the Notes. Notwithstanding the preceding sentence, any Capital
Stock that would constitute Disqualified Stock solely because the holders of the Capital Stock have the right to require the issuer thereof
to repurchase such Capital Stock upon the occurrence of a change of control or an asset sale will not constitute Disqualified Stock if
the provisions applicable to such Capital Stock either (i) are no more favorable to the holders of such Capital Stock than the provisions
contained in Section 4.7 and Section 4.11 and such Capital Stock specifically provides that the issuer will not
repurchase or redeem any of such Capital Stock pursuant to such provisions prior to the Issuer’s repurchase of such of the Notes
as are required to be repurchased pursuant to the Section 4.7 and Section 4.11 or (ii) provide that the
issuer thereof may not repurchase or redeem any such Capital Stock pursuant to such provisions unless such repurchase or redemption is
permitted by Section 4.4.
“Equity Interests” means Capital
Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or
exchangeable for, Capital Stock).
“Equity Offering” means any
issuance or sale of Capital Stock (other than Disqualified Stock) of the Issuer (or any direct or indirect parent of the Issuer to the
extent the net proceeds therefrom are contributed to the common equity capital of the Issuer or used to purchase Equity Interests (other
than Disqualified Stock) of the Issuer) or warrants, options or other rights to acquire Capital Stock (other than Disqualified Stock)
of the Issuer after the Issue Date, other than any issuance pursuant to employee benefit plans or otherwise in compensation to officers,
directors or employees.
“ERISA Legend” means the legend
set forth in Section 2.6(f)(3), which is required to be placed on all Notes issued under this Indenture.
“Euroclear” means Euroclear
Bank S.A./N.V., or any successor securities clearance agency.
“Event of Default” means each
event described under Section 6.1 and any other event defined as an “Event of Default” in this Indenture.
“Excluded Assets” means the
following:
| (1) | (i) assets for which the grant of a security interest, therein
(A) is prohibited by law (including, without limitation, financial assistance laws,
corporate benefit laws or otherwise), rule, regulation or requires Governmental Authority
or similar third party consent or (B) is prohibited by contract permitted hereunder
and existing on the Issue Date (and not entered into in contemplation thereof) or, in the
case of any Subsidiary acquired after the Issue Date, at the time of acquisition of such
Subsidiary (and not entered into in contemplation thereof) or would trigger termination under
any such permitted contract binding on such assets (in each case, after giving effect to
the applicable anti-assignment provisions of the Uniform Commercial Code, PPSA or other applicable
laws), or (ii) any lease, license, franchise, charter, authorization, contract or other
agreement (including any purchase money security interest, capital lease obligation or other
similar arrangement) to the extent a security interest therein is prohibited by or in violation
of a term, provision or condition of, or would invalidate or give any other party thereto
(other than the Issuer or any Subsidiary) the right to terminate, any such lease, license,
franchise, charter, authorization, contract or agreement (in each case, after giving effect
to the applicable anti-assignment provisions of the Uniform Commercial Code, the PPSA or
other applicable laws in any relevant jurisdiction); provided, however, that
the Collateral shall include (and such security interest shall attach) at such time as the
contractual prohibition shall no longer be applicable and to the extent severable, shall
attach to any portion of any lease, license, franchise, charter, authorization, contract,
agreement or other asset not subject to the prohibitions specified above; provided,
further, that the exclusions referred to in this clause (a) shall not include
any proceeds of any such lease, license, franchise, charter, authorization, contract or agreement
the assignment of which is expressly deemed effective under applicable law notwithstanding
such prohibition (unless such proceeds or receivables would independently constitute Excluded
Assets); |
| (2) | (i) Equity Interests in excess of 65% of the total issued and
outstanding voting Equity Interests of (x) a CFC or (y) any CFC Holdco, (ii) Equity
Interests in any Person (other than any Guarantor, any Wholly Owned Restricted Subsidiaries
of the Issuer or any Guarantor that are Material Subsidiaries), (iii) Equity Interests
in any Excluded Subsidiary (other than (A) any Subsidiary that is not a U.S. Subsidiary
or Canadian Subsidiary or (B) CFC Holdco or (C) any Subsidiary which is an Excluded
Subsidiary solely pursuant to clause (k) of the definition of Excluded Subsidiary),
(iv) Equity Interests in partnerships, joint ventures or any non-wholly owned Subsidiaries
which cannot be pledged without the consent of one or more third-parties, (v) Equity
Interests of any Subsidiary of the Issuer that is a Subsidiary of an Excluded Subsidiary
and (vi) Margin Stock (as defined in Regulation U of the Board of Governors of the Federal
Reserve System of the United States); |
| (3) | any “intent-to-use” application for registration of a
trademark or service mark filed pursuant to Section 1(b) of the Lanham Act, 15
U.S.C. § 1051, prior to the filing of a “Statement of Use” pursuant to Section 1(d),
or an “Amendment to Allege Use” pursuant to Section 1(c), of the Lanham
Act, or similar applications pursuant to any applicable laws in any other applicable jurisdiction,
to the extent, if any, that, and solely during the period, if any, in which, the grant of
a security interest therein would impair the validity or enforceability of such application
under applicable laws; |
| (4) | (i) any leasehold interest (including any ground lease interest)
in real property; (provided, that none of the Issuer or Guarantors shall be required
to deliver landlord or other third party lien waivers, estoppels or collateral access letters),
(ii) any fee interest in owned real property (subject to Section 11.1 and Section 4.22
with respect to Material Real Property) and (iii) any fixtures affixed to any real property
to the extent a security interest in such fixtures may not be perfected by a UCC-1 or PPSA
financing statement in the jurisdiction of organization of the Issuer or applicable Guarantor
or jurisdiction where such real property is located, as applicable, or, solely in the case
of fixtures affixed to any Material Real Property, to the extent a security interest in such
fixtures may not be perfected by the recording of a Mortgage or the filing of a fixture filing
in the jurisdiction where such Material Real Property is located; provided that Excluded
Assets shall not include any real property subject to a Mortgage or other Material Real Property
for which the Notes Collateral Agent has requested a valid and perfected Lien under Section 11.1
and Section 4.22; |
| (5) | vehicles and other assets subject to certificates of title or ownership
and aircraft; |
| (6) | non-U.S. and non-Canadian intellectual property (to the extent a security
interest therein cannot be perfected by filing a Uniform Commercial Code or PPSA financing
statement), in relation to U.S. Subsidiaries, letters of credit and letter of credit rights
that do not constitute supporting obligations in respect of other Collateral, except to the
extent such letter of credit rights may be perfected by the filing of a Uniform Commercial
Code financing statement; |
| (7) | in relation to U.S. Subsidiaries, commercial tort claims that, in
the reasonable determination of the Issuer, are not expected to result in a judgment (or
settlement) in excess of $5,000,000; |
| (8) | assets for which the grant of security interest therein would result
in material adverse tax or regulatory costs or consequences as reasonably determined by the
Issuer in consultation with the Notes Collateral Agent; provided, that the Notes Collateral
Agent shall be deemed to have made such a reasonable determination if such a determination
has already been made by either the First Lien Revolving Credit Agreement Collateral Agent
or the First Lien Term Loan Collateral Agent (with respect to the First Lien Revolving Credit
Agreement or the First Lien Term Loan Credit Agreement, respectively); |
| (9) | any preferred stock issued by GFL Holdco (US), LLC; and |
| (10) | particular assets as agreed between the Issuer and the Notes Collateral
Agent if and for so long as, in the reasonable judgment of the Notes Collateral Agent and
the Issuer, the cost, difficulty, burden or consequences of obtaining, perfecting or maintaining
a security interest in such assets exceeds the practical benefits to the Holders afforded
thereby; provided, however, that Excluded Assets shall not include any proceeds
of any Excluded Assets referred to in clauses (a) through and including (i) above
(unless such proceeds would constitute Excluded Assets referred to in any such clause); provided
further, that the Notes Collateral Agent shall be deemed to have made such a reasonable
determination if such a determination has already been made by either the First Lien Revolving
Credit Agreement Collateral Agent or the First Lien Term Loan Collateral Agent (with respect
to the First Lien Revolving Credit Agreement or the First Lien Term Loan Credit Agreement,
respectively). |
Certain security interest in the Collateral securing
the Notes will not be in place on the date of issuance of the Notes or will not be perfected on such date, but will be required to be
put in place as promptly as practicable thereafter and in any event no later than 90 days after the Issue Date.
“Excluded Contributions” means
the Net Cash Proceeds and Cash Equivalents, or the Fair Market Value of other assets, received by the Issuer after the Issue Date from:
| (1) | contributions to its common equity capital, |
| (2) | dividends, distributions, fees and other payments from any Unrestricted
Subsidiaries or joint ventures or Investments in entities that are not Restricted Subsidiaries,
and |
| (3) | the sale of Capital Stock of the Issuer, |
in each case designated as Excluded Contributions pursuant to an Officer’s
Certificate, or that are utilized to make a Restricted Payment pursuant to clause (13) of Section 4.4(c). Excluded Contributions
will be excluded from the calculation set forth in clause (3) of Section 4.4(b) and clauses Section 4.4(c)(2)(2),
(12) and (13) of Section 4.4(c). Any Net Cash Proceeds designated as an Excluded Contribution shall not be separately be
treated by the Issuer as a Cash Contribution Amount.
“Excluded Subsidiary” means
(a) Immaterial Subsidiaries, (b) Unrestricted Subsidiaries, (c) any Subsidiary that is prohibited or restricted by law,
rule, regulation or contractual obligation (so long as, in respect to any such contractual obligation, such prohibition existed on the
Issue Date or, if later, on the date the applicable Subsidiary is acquired and is not incurred in contemplation of such acquisition)
from providing a guarantee or that would require a governmental (including regulatory) consent, approval, license or authorization in
order to provide a guarantee (including, in each case, under any financial assistance, corporate benefit or thin capitalization rule),
in each case, for so long as such prohibition or circumstance exists, (d) any Subsidiary that is not a Wholly Owned Restricted Subsidiary
of the Issuer or any Guarantor, (e) any Subsidiary that is neither a U.S. Subsidiary nor a Canadian Subsidiary, (f) any U.S.
Subsidiary that is a Subsidiary of a CFC, (g) any CFC Holdco, (h) any Subsidiary that is a not-for-profit organization, (i) Captive
Insurance Subsidiaries, (j) any Subsidiary that is a special purpose entity for a securitization transaction or a similar special
purpose, (k) any Subsidiary with respect to which providing a guarantee would result in material adverse tax consequences (including
as a result of Section 956 of the Code or any similar Law in any applicable jurisdiction) to the Issuer or any of its Subsidiaries
as reasonably determined by the Issuer (in consultation with the Notes Collateral Agent) and (l) any other Subsidiary with respect
to which, as reasonably determined by the Issuer and the Notes Collateral Agent, the burden or cost of providing a guarantee outweighs
the benefits afforded to the Holders thereby; provided, that the Notes Collateral Agent shall be deemed to have made such a reasonable
determination if such a determination has already been made by either the First Lien Revolving Credit Agreement Collateral Agent or the
First Lien Term Loan Collateral Agent (with respect to the First Lien Revolving Credit Agreement or the First Lien Term Loan Credit Agreement,
respectively).
“Existing Indebtedness” means
the aggregate principal amount of Indebtedness of the Issuer and its Restricted Subsidiaries (other than (i) Indebtedness represented
by the Notes or the Note Guarantees and (ii) Indebtedness under the Credit Agreements) in existence on the Issue Date, until such
Indebtedness is Repaid or otherwise extended, refinanced, renewed, replaced, defeased or refunded.
“Existing Notes” means the
Existing Secured Notes and the Existing Unsecured Notes.
“Existing Secured Notes” means
the 3.500% 2028 Secured Notes, the 3.750% 2025 Secured Notes, the 4.250% 2025 Secured Notes and the 5.125% 2026 Secured Notes.
“Existing Unsecured Notes”
means the 4.000% 2028 Unsecured Notes, the 4.375% 2029 Unsecured Notes and the 4.750% 2029 Unsecured Notes.
“Fair Market Value” means the
value that would be paid by a willing buyer to a willing seller that is not an Affiliate of the willing buyer in a transaction not involving
distress or necessity of either party; provided that, in the case of an Asset Sale where such value exceeds $15.0 million, such
determination shall be made in good faith by the Chief Executive Officer or Chief Financial Officer of the Issuer.
“FATCA” means (a) Sections
1471 through 1474 of the Internal Revenue Code of 1986, as amended from time to time (the “Code”) (including regulations
and guidance thereunder), (b) any successor version thereof, (c) any intergovernmental agreement or any agreement entered into
pursuant to Section 1471(b)(1) of the Code or (d) any law, regulation, rule or other official guidance or practice
implementing the foregoing.
“Financing Lease” means a lease
of an asset providing the right of use of such asset, that has the economic characteristics of asset ownership, with a term of not less
than 75% of the asset’s useful life, the present value of lease payments thereunder must be not less than 90% of the asset’s
market value at the time of entering into the lease and the lessee must acquire, or have the right to acquire, ownership of the asset
at the end of the lease term.
“Financing Lease Obligation”
means, as to any Person, the obligations of such Person under a Financing Lease, provided that the amount of such obligations
shall be the capitalized amount thereof, determined in accordance with GAAP.
“First Lien Intercreditor Agreement”
means the First Lien Intercreditor Agreement, dated as of September 30, 2016, among the Issuer, the grantors party thereto, Bank
of Montreal, as First Lien Revolving Credit Agreement Collateral Agent for the First Lien Revolving Credit Agreement Secured Parties
and Barclays Bank PLC, as First Lien Term Loan Collateral Agent for the First Lien Term Loan Secured Parties, as may be amended from
time to time.
“First Lien Obligations” means,
collectively, (i) the First Lien Revolving Credit Agreement Obligations, (ii) the First Lien Term Loan Obligations, (iii) the
3.500% 2028 Secured Notes Obligations, (iv) the 3.750% 2025 Secured Notes Obligations, (v) the 4.250% 2025 Secured Notes Obligations,
(vi) the 5.125% 2026 Secured Notes Obligations, (vii) the Notes Obligations and (viii) each Series of Additional
First Lien Obligations.
“First Lien Revolving Credit Agreement”
means the credit agreement in effect on the Issue Date among the Issuer, the guarantors from time to time party thereto, the lenders
from time to time party thereto, and Bank of Montreal, as agent, including any related notes, debentures, pledges, guarantees, security
documents, instruments and agreements executed from time to time in connection therewith, and in each case as amended, supplemented,
restated, modified, renewed, refunded, replaced, restructured, repaid, refinanced or otherwise modified, in whole or in part, from time
to time, including any agreement extending the maturity of, refinancing, replacing or otherwise restructuring or adding the Issuer or
any of its Subsidiaries as replacement or additional borrowers or guarantors thereunder, and all or any portion of the Indebtedness and
other obligations under such agreement or agreements or any successor or replacement agreement or any agreements, and whether by the
same or any other agent, lender or group of lenders. For greater certainty, it is acknowledged that Interest Rate Agreements, Currency
Agreements and Commodity Hedging Contracts entered into with a Person that at that time is a lender (or an Affiliate thereof) under the
First Lien Revolving Credit Agreement are separate from, are not included within and do not form part of any above inclusions of, the
First Lien Revolving Credit Agreement.
“First Lien Revolving Credit Agreement
Administrative Agent” means the administrative agent under the “First Lien Revolving Credit Agreement” and shall
include any successor administrative agent; provided, that if the First Lien Revolving Credit Agreement is refinanced by a replacement
First Lien Revolving Credit Agreement, then all references herein to the First Lien Revolving Credit Agreement Administrative Agent shall
refer to the administrative agent (or trustee) under the replacement First Lien Revolving Credit Agreement.
“First Lien Revolving Credit Agreement
Collateral Agent” means the First Lien Revolving Credit Agreement Administrative Agent in its capacity as collateral agent
and administrative agent under the First Lien Revolving Credit Agreement.
“First Lien Revolving Credit Agreement
Obligations” means all “Obligations” as defined in the First Lien Revolving Credit Agreement that are required
to be secured on a first lien basis.
“First Lien Revolving Credit Agreement
Secured Parties” means the “Secured Parties” as defined in the First Lien Revolving Credit Agreement.
“First Lien Secured Parties”
means (i) the First Lien Revolving Credit Agreement Secured Parties, (ii) the First Lien Term Loan Secured Parties, (iii) the
3.500% 2028 Secured Notes Secured Parties, (iv) the 3.750% 2025 Secured Notes Secured Parties, (v) the 4.250% 2025 Secured
Notes Secured Parties, (vi) the 5.125% 2026 Secured Notes Secured Parties, (vii) the Notes Secured Parties and (viii) the
Additional First Lien Secured Parties with respect to each Series of Additional First Lien Obligations.
“First Lien Term Loan Administrative
Agent” means the administrative agent under the “First Lien Term Loan Agreement” and shall include any successor
administrative agent; provided, that if the First Lien Term Loan Agreement is refinanced by a replacement First Lien Term Loan
Agreement, then all references herein to the First Lien Term Loan Administrative Agent shall refer to the administrative agent (or trustee)
under the replacement First Lien Term Loan Agreement.
“First Lien Term Loan Collateral Agent”
means the First Lien Term Loan Administrative Agent in its capacity as collateral agent and administrative agent under the First Lien
Term Loan Agreement.
“First Lien Term Loan Credit Agreement”
means the credit agreement in effect on the Issue Date, among the Issuer, the guarantors from time to time party thereto, the lenders
from time to time party thereto, and Barclays Bank PLC, as agent, including any related notes, debentures, pledges, guarantees, security
documents, instruments and agreements executed from time to time in connection therewith, and in each case as amended, supplemented,
restated, modified, renewed, refunded, replaced, restructured, repaid, refinanced or otherwise modified, in whole or in part, from time
to time, including any agreement extending the maturity of, refinancing, replacing or otherwise restructuring or adding the Issuer or
any of its Subsidiaries as replacement or additional borrowers or guarantors thereunder, and all or any portion of the Indebtedness and
other obligations under such agreement or agreements or any successor or replacement agreement or any agreements, and whether by the
same or any other agent, lender or group of lenders. For greater certainty, it is acknowledged that Interest Rate Agreements, Currency
Agreements and Commodity Hedging Contracts entered into with a Person that at that time is a lender (or an Affiliate thereof) under the
First Lien Term Loan Credit Agreement are separate from, are not included within and do not form part of any above inclusions of, the
First Lien Term Loan Credit Agreement.
“First Lien Term Loan Obligations”
means all “Obligations” as such term is defined in the First Lien Term Loan Agreement that are required to be secured on
a first lien basis.
“First Lien Term Loan Secured Parties”
means the “Secured Parties” as defined in the First Lien Term Loan Credit Agreement.
“Fitch” means Fitch Ratings
Inc., or any successor to the rating agency business thereof.
“Fixed Charge Coverage Ratio”
means, for any period, the ratio of Consolidated EBITDA to Fixed Charges for the Issuer and its Restricted Subsidiaries for such period.
For purposes of calculating the Fixed Charge Coverage
Ratio:
| (1) | in the event that the Issuer or any of its Restricted Subsidiaries
incurs, assumes, guarantees, repays, repurchases, redeems, defeases or otherwise discharges
any Indebtedness (other than ordinary working capital borrowings) or issues, repurchases
or redeems Disqualified Stock or preferred stock subsequent to the commencement of the period
for which the Fixed Charge Coverage Ratio is being calculated and on or prior to the date
on which the event for which the calculation of the Fixed Charge Coverage Ratio is made (the
“Calculation Date”), then the Fixed Charge Coverage Ratio will be calculated
giving pro forma effect to such incurrence, assumption, guarantee, repayment, repurchase,
redemption, defeasance or other discharge of Indebtedness, or such issuance, repurchase or
redemption of Disqualified Stock or preferred stock, and the use of the proceeds therefrom,
as if the same had occurred at the beginning of the applicable four-quarter reference period;
provided, however, that the pro forma calculation of Fixed Charges shall not give
effect to (i) any Permitted Debt incurred on the Calculation Date (other than Indebtedness
incurred pursuant to Section 4.3(b)(13)) or (ii) any repayment, repurchase,
redemption, defeasance or other discharge of Indebtedness to the extent such repayment, retirement,
extinguishment, defeasance or other discharge results from the proceeds of such Permitted
Debt referred to in clause (i); |
| (2) | (a) acquisitions and Investments that have been made, customer
contracts that have been entered into, by the Issuer or any of its Restricted Subsidiaries,
including through mergers or consolidations, or any Person or any of its Restricted Subsidiaries
acquired by the Issuer or any of its Restricted Subsidiaries, and including any related financing
transactions and including increases in ownership of Restricted Subsidiaries, during the
four-quarter reference period or subsequent to such reference period and on or prior to the
Calculation Date, will be given pro forma effect as if they had occurred on the first day
of the four-quarter reference period, and (b) Consolidated EBITDA for such reference
period shall be calculated on a pro forma basis giving effect to (i) any expense and
cost reductions and other synergies related to such transaction referred to in clause (2)(a) above
and (ii) any other expense reductions and cost savings related to operational efficiencies,
strategic initiatives or purchasing improvements and other synergies (whether or not related
to such transactions referred to in clause (2)(a) above), in each case that have occurred
prior to the Calculation Date or are reasonably expected to occur within 24 months of the
Calculation Date, in the reasonable judgment of the chief financial or accounting officer
of the Issuer in good faith (regardless of whether those cost savings or operating improvements
could then be reflected in pro forma financial statements in accordance with Regulation S-X
promulgated under the 1933 Act or any other regulation or policy of the Commission related
thereto); provided that such net cost savings, initiatives, improvements and synergies
are reasonably identifiable and quantifiable; |
| (3) | the Consolidated EBITDA attributable to discontinued operations, as
determined in accordance with GAAP, and operations or businesses (and ownership interests
therein) disposed of prior to the Calculation Date, will be excluded; |
| (4) | the Fixed Charges attributable to discontinued operations, as determined
in accordance with GAAP, and operations or businesses (and ownership interests therein) disposed
of prior to the Calculation Date, will be excluded, but only to the extent that the obligations
giving rise to such Fixed Charges will not be obligations of the specified Person or any
of its Restricted Subsidiaries following the Calculation Date; |
| (5) | any Person that is a Restricted Subsidiary on the Calculation Date
will be deemed to have been a Restricted Subsidiary at all times during such four-quarter
period; |
| (6) | any Person that is not a Restricted Subsidiary on the Calculation
Date will be deemed not to have been a Restricted Subsidiary at any time during such four-quarter
period; |
| (7) | if the Issuer so elects, pro forma effect shall be given to any entity,
division, plant, unit or line of business or New Project that commenced and completed at
least one full fiscal quarter of operations during such reference period as if such entity,
division, plant, unit, line of business or New Project had commenced commercial operations
on the first day of such reference period and such pro forma calculation shall be based on
the annualized results of commercial operations of such entity, plant, unit, division or
line of business since the date it so commenced commercial operations; |
| (8) | if any Indebtedness bears a floating rate of interest, the interest
expense on such Indebtedness will be calculated as if the weighted average interest rate
during such period had been the rate of interest in effect on the Calculation Date and had
been the applicable rate for the entire period (taking into account any Hedging Obligation
applicable to such Indebtedness if such Hedging Obligation has a remaining term as at the
Calculation Date in excess of 12 months or ends on the maturity date of such Indebtedness);
and |
| (9) | when calculating the availability under any basket or ratio under
this Indenture, in each case in connection with a Limited Condition Acquisition or Investment,
the Calculation Date of such basket or ratio and determination as to whether any Default
or Event of Default shall have occurred and be continuing may, at the option of the Issuer
(which election may be made on the date of such acquisition), be the date the definitive
agreements for such Limited Condition Acquisition or Investment are entered into and, if
the Issuer so elects, such baskets or ratios shall be calculated on a pro forma basis after
giving effect to such Limited Condition Acquisition or Investment and the other transactions
to be entered into in connection therewith (including any incurrence of Indebtedness and
the use of proceeds thereof) as if they occurred at the beginning of the applicable reference
period for purposes of determining the ability to consummate any such Limited Condition Acquisition
or Investment, and, for the avoidance of doubt, (x) if any of such baskets or ratios
are exceeded as a result of fluctuations in such basket or ratio (including due to fluctuations
in Consolidated EBITDA or Total Assets of the Issuer or the target company) subsequent to
such Calculation Date at or prior to the consummation of the relevant Limited Condition Acquisition
or Investment, such baskets or ratios will not be deemed to have been exceeded as a result
of such fluctuations and (y) such baskets or ratios need not be tested at the time of
consummation of such Limited Condition Acquisition or Investment or related transactions;
provided, however, that (a) if any ratios improve or baskets increase as a result
of such fluctuations, such improved ratios or baskets may be utilized and (b) if the
Issuer elects to have such Calculation Date and determination occur at the time of entry
into such definitive agreement, any such transactions (including any incurrence of Indebtedness
and the use of proceeds thereof) shall be deemed to have occurred on the date the definitive
agreements are entered into and outstanding thereafter for purposes of calculating any baskets
or ratios under this Indenture after the date of such agreement and before the consummation
of such Limited Condition Acquisition or Investment and unless and until such Limited Condition
Acquisition has been abandoned, as determined by the Issuer, prior to the consummation thereof.
For the avoidance of doubt, if the Issuer has exercised its option pursuant to the foregoing
and any Default or Event of Default occurs following the date on which the definitive acquisition
agreements for the applicable Limited Condition Acquisition were entered into and prior to
or on the date of the consummation of such Limited Condition Acquisition, any such Default
or Event of Default shall be deemed to not have occurred or be continuing for purposes of
determining whether any action being taken in connection with such Limited Condition Acquisition
is permitted under this Indenture. |
“Fixed Charges” means, for
any period, the sum, without duplication, of:
| (1) | the Consolidated Interest Expense (excluding amortization or write-off
of deferred financing costs or debt issuance costs which have been paid) of the Issuer and
its Restricted Subsidiaries for such period, whether paid or accrued; plus |
| (2) | the amount of all dividends, whether paid or accrued and whether or
not in cash, on any series of preferred stock of the Issuer or any of its Restricted Subsidiaries,
other than dividends on Equity Interests payable solely in Equity Interests of the Issuer
(other than Disqualified Stock) or to the Issuer or a Restricted Subsidiary of the Issuer. |
“GAAP” means (1) International
Financial Reporting Standards (“IFRS”) or any accounting principles that are recognized as being generally accepted
in the United States; provided, however, that if any such accounting principle with respect to the accounting for leases (including
Financing Lease Obligations) changes after the Issue Date, the Issuer may, at its option, elect to employ such accounting principle as
in effect on the Issue Date or (2) if elected by the Issuer by written notice to the Trustee in connection with the delivery of
financial statements and information, any accounting principles that are recognized as being generally accepted in Canada which are in
effect from time to time, in each case as in effect on the first date of the period for which the Issuer is making such an election and
thereafter as in effect from time to time.
“Global Notes” means one or
more Notes issued and outstanding and held by, or on behalf of, a Depositary.
“Global Notes Legend” means
the legend set forth in Section 2.6(f)(2), which is required to be placed on all Global Notes issued under this Indenture.
“Government Securities” means
securities that are:
| (1) | direct obligations of the United States for the timely payment of
which its full faith and credit is pledged; or |
| (2) | obligations of a Person controlled or supervised by and acting as
an agency or instrumentality of the United States, the timely payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States, |
which, in either case, are not callable or redeemable at the option
of the issuers thereof, and shall also include a depositary receipt issued by a bank (as defined in Section 3(a)(2) of the
1933 Act), as custodian with respect to any such Government Securities or a specific payment of principal of or interest on any such
Government Securities held by such custodian for the account of the holder of such 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 Government Securities or the specific payment of principal of or interest
on the Government Securities evidenced by such depositary receipt.
“Governmental Authority” means
the government of the United States or Canada or any other nation, or of any political subdivision thereof, whether state, local, county,
provincial or otherwise 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 (including any supra-national
bodies such as the European Union or the European Central Bank and including a Minister of the Crown, Superintendent of Financial Institutions
or other comparable authority or agency).
“Grantors” means the Issuer
and the Guarantors.
“guarantee” means a guarantee
other than by endorsement of negotiable instruments for collection in the ordinary course of business, direct or indirect, in any manner
including, without limitation, by way of a pledge of assets or through letters of credit or reimbursement agreements in respect thereof,
of all or any part of any Indebtedness or other obligations.
“Guarantor” means each Restricted
Subsidiary of the Issuer that provided a Note Guarantee on the Issue Date and each other Restricted Subsidiary that provides a Note Guarantee
pursuant to Section 4.9 or otherwise.
“Hedging Obligations” means,
with respect to any specified Person, all obligations of such Person under all Currency Agreements, all Interest Rate Agreements and
all Commodity Hedging Contracts, with the amount of such obligations being equal to the net amount payable if such obligations were terminated
at that time due to default by such Person (after giving effect to any contractually permitted set-off).
“Holder” means a Person in
whose name a Note is registered.
“Immaterial Subsidiary” means
any Restricted Subsidiary with respect to which, as of the last day of the most recently ended test period on or prior to the date of
determination, Consolidated EBITDA or Total Assets attributable to such Restricted Subsidiary for the period of four consecutive fiscal
quarters ending on such date does not exceed 2.5% of the Consolidated EBITDA or Total Assets of the Issuer and the Restricted Subsidiaries
for such period; provided that if the aggregate Consolidated EBITDA or Total Assets attributable to Restricted Subsidiaries that
are Immaterial Subsidiaries shall exceed 5.0% of Consolidated EBITDA or Total Assets of the Issuer and its Restricted Subsidiaries for
such four-quarter period, then the Issuer shall re-designate one or more of such Restricted Subsidiaries to not be Immaterial Subsidiaries
within twenty (20) Business Days after delivery of the compliance certificate for such fiscal quarter delivered to the First Lien Term
Loan Administrative Agent such that only Restricted Subsidiaries as shall then have aggregate Consolidated EBITDA and or Total Assets
of 5.0% or less of the Consolidated EBITDA and Total Assets of the Issuer and the Restricted Subsidiaries shall constitute Immaterial
Subsidiaries.
“Indebtedness” means (without
duplication), with respect to any specified Person, whether or not contingent:
| (A) | (1) all indebtedness of such Person in respect of borrowed money;
(2) all obligations of such Person evidenced by bonds, notes, debentures or similar
instruments or letters of credit, letters of guarantee or tender checks (or reimbursement
agreements in respect thereof); (3) all obligations of such Person in respect of banker’s
acceptances; (4) all Attributable Debt in respect of Sale/Leaseback Transactions entered
into by such Person; (5) all obligations of such Person representing the balance deferred
and unpaid purchase price of any property (including Financing Lease Obligations, except
any such balance that constitutes (x) a trade payable or similar obligation to a trade
creditor incurred in the ordinary course of business, (y) any earn-out obligations until
such obligation becomes a liability on the balance sheet of such Person in accordance with
GAAP and (z) any purchase price holdbacks in respect of a portion of the purchase price
of an asset to satisfy warranty or other unperformed obligations of the seller or any post-closing
payment adjustments to which the seller may become entitled to the extent such payment is
determined by a final closing balance sheet; 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 120 days thereafter),
which purchase price is due more than 12 months after the date of placing the property in
service or taking delivery and title thereto; (6) all net obligations of such Person
under Hedging Obligations; (7) all conditional sale obligations of such Person and all
obligations of such Person under title retention agreements, but excluding a title retention
agreement to the extent it constitutes an operating lease under GAAP; (8) all obligations
of such Person under an agreement or arrangement that in substance provides financing pursuant
to the factoring of accounts receivable; (9) all preferred stock issued by such Person,
if such Person is a Restricted Subsidiary of the Issuer and is not a Guarantor; and (10) all
Indebtedness of others secured by a Lien on any asset of the specified Person (whether or
not such Indebtedness is assumed by the specified Person) and, to the extent not otherwise
included, a guarantee by the specified Person of any Indebtedness of any other Person; to
the extent that any of the foregoing indebtedness would appear as a liability on a consolidated
balance sheet of such Person prepared in accordance with GAAP; |
| (B) | to the extent not otherwise included, any obligation of such Person
to be liable for, or to pay, as obligor, guarantor or otherwise, on the Indebtedness of another
Person (other than by endorsement of negotiable instruments for collection in the ordinary
course of business); and |
| (C) | to the extent not otherwise included, Indebtedness of another
Person secured by a Lien on any asset owned by such Person (whether or not such Indebtedness
is assumed by such Person); provided, however, that the amount of such Indebtedness
will be the lesser of: (1) the Fair Market Value (as determined in good faith by the
Issuer) of such asset at such date of determination and (2) the amount of such Indebtedness
of such other Person. |
The amount of any Indebtedness issued at a price
that is less than the principal amount thereof shall be the accreted value of the Indebtedness.
The amount of any Indebtedness of another Person
secured by a Lien on the assets of the specified Person shall be the lesser of:
| (a) | the Fair Market Value of such assets at the date of determination; and |
| (b) | the amount of such Indebtedness of such other Person. |
For the avoidance of doubt, “Indebtedness”
of any Person shall not include:
| (1) | trade payables and accrued liabilities incurred in the ordinary course
of business and payable in accordance with customary practice; |
| (2) | deferred tax obligations; |
| (4) | uncapitalized interest; |
| (5) | in connection with a purchase by the Issuer or any Restricted Subsidiary
of any business or assets, any post-closing payment adjustment to which the seller may become
entitled to the extent such adjustment is determined by a final closing balance sheet or
such adjustment depends on the performance of such business or assets 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 120 days thereafter; |
| (6) | pension fund obligations or rehabilitation obligations that are classified
as “indebtedness” under GAAP but that would not otherwise constitute Indebtedness
under clauses (A)(1) through (A)(9) of this definition; and |
| (7) | Non-Financing Lease Obligations, obligations under or in respect of
straight-line leases, operating leases or Sale/Leaseback Transactions (except any resulting
Financing Lease Obligations). |
“Indenture” means this Indenture,
as amended or supplemented from time to time.
“Independent Financial Advisor”
means an accounting, appraisal or investment banking firm or consultant, in each case of nationally recognized standing that is, in the
good faith determination of the Issuer, qualified to perform the task for which it has been engaged.
“Indirect Participant” means
a Person who holds a beneficial interest in a Global Note through a Participant.
“Initial Purchasers” means
J.P. Morgan Securities LLC, ATB Capital Markets Inc., Barclays Capital Inc., BMO Capital Markets Corp., CIBC World Markets Corp., Desjardins
Securities Inc., Goldman Sachs & Co. LLC, National Bank of Canada Financial Inc., RBC Capital Markets, LLC, Scotia Capital (USA)
Inc., Stifel, Nicolaus & Company, Incorporated, TD Securities (USA) LLC and BC Partners Securities LLC.
“Insolvency or Liquidation Proceeding”
means:
| (1) | any case commenced by or against the Issuer or any other Grantor under
any bankruptcy law, any other proceeding for the reorganization, recapitalization, compromise
or adjustment or marshalling of the assets or liabilities of the Issuer or any other Grantor,
any receivership or assignment for the benefit of creditors relating to the Issuer or any
other Grantor or any similar case or proceeding relative to the Issuer or any other Grantor
or its creditors, as such, in each case whether or not voluntary; |
| (2) | any liquidation, dissolution, marshalling of assets or liabilities
or other winding up of or relating to the Issuer or any other Guarantor, in each case whether
or not voluntary and whether or not involving bankruptcy or insolvency; or |
| (3) | any other proceeding of any type or nature in which substantially
all claims of creditors of the Issuer or any other Guarantor are determined and any payment
or distribution is or may be made on account of such claims. |
“Intellectual Property Security Agreements”
means one or more intellectual property security agreements contemplated to be executed and delivered pursuant to the Collateral Requirements.
“Intercreditor Agreements”
means each First Lien Intercreditor Agreement and each comparable junior lien intercreditor agreement with respect to permitted Indebtedness
secured with a Junior Lien Priority.
“Interest Payment Date” means
January 15 and July 15 of each year that the Notes are outstanding, commencing (except in respect of any Additional Notes)
on January 15, 2024.
“Interest Rate Agreement” means
any financial arrangement entered into between a Person (or its Restricted Subsidiaries) and a counterparty on a case by case basis in
connection with interest rate swap transactions, interest rate options, cap transactions, floor transactions, collar transactions and
other similar interest rate protection related transactions, the purpose of which is to mitigate or eliminate its exposure to fluctuations
in interest rates.
“Investment Grade” means a
rating equal to or higher than “Baa3” (or the equivalent) in the case of Moody’s, “BBB−”
(or the equivalent) in the case of S&P, “BBB-” (or the equivalent) in the case of Fitch, “BBB (low)”
(or the equivalent) in the case of DBRS, or any equivalent rating by any other Approved Rating Organization.
“Investments” means, with respect
to any Person, all direct or indirect investments by such Person in other Persons (including Affiliates) in the form of:
| (1) | any direct or indirect advance, loan or other extension of credit
to another Person; |
| (2) | any capital contribution to another Person, by means of any transfer
of cash or other property in any form; |
| (3) | any purchase or acquisition of Equity Interests, bonds, notes or other
Indebtedness, or other instruments or securities, issued by another Person, including the
receipt of any of the above as consideration for the disposition of assets or rendering of
services; |
| (4) | any guarantee of any Indebtedness of another Person; and |
| (5) | all other items that are or would be classified as investments on
a balance sheet prepared in accordance with GAAP; |
provided
that “Investments” with respect to any Person shall exclude extensions of trade credit in the ordinary
course of business on commercially reasonable terms in accordance with the normal trade practices of such Person.
If the Issuer or any Restricted Subsidiary sells
or otherwise disposes of any Equity Interests of any direct or indirect Restricted Subsidiary such that, after giving effect to any such
sale or disposition, such Person is no longer a Restricted Subsidiary, the Person making such sale or other disposition will be deemed
to have made an Investment on the date of any such sale or disposition equal to the Fair Market Value of the Issuer’s Investments
in such Restricted Subsidiary that were not sold or disposed of. The acquisition by the Issuer or any Restricted Subsidiary of a Person
that holds an Investment in a third Person will be deemed to be an Investment by the Issuer or such Restricted Subsidiary in such third
Person in an amount equal to the Fair Market Value of the Investment held by the acquired Person in such third Person. If the Issuer
designates any of its Restricted Subsidiaries as an Unrestricted Subsidiary in accordance with Section 4.10, the Issuer will
be deemed to have made an Investment in such Subsidiary on the date of such designation equal to the Fair Market Value of such Person.
In each of the foregoing cases, the amount of the Investment will be determined as provided in the penultimate paragraph of Section 4.4.
Except as otherwise provided in this Indenture, the amount of an Investment will be determined at the time the Investment is made and
without giving effect to subsequent changes in value.
“Investor” means (i) each
of (a) BC Partners Advisors L.P. and its Affiliates (including BC European Capital X LP and the other funds, partnerships or other
vehicles managed, advised or controlled thereby, together with any entity (directly or indirectly) wholly owned by any such fund, partnership
or vehicle, but not including, however, any portfolio operating company of the foregoing), (b) Ontario Teachers’ Pension Plan
Board and its Affiliates (including the funds, partnerships or other vehicles managed, advised or controlled thereby, together with any
entity (directly or indirectly) wholly owned by any such fund, partnership or vehicle, but not including, however, any portfolio operating
company of the foregoing), (c) Magny Cours Investment Pte. Ltd. and its Affiliates (including the funds, partnerships or other vehicles
managed, advised or controlled thereby, together with any entity (directly or indirectly) wholly owned by any such fund, partnership
or vehicle, but not including, however, any portfolio operating company of the foregoing) and (d) Patrick Dovigi and his Affiliates
and (ii) any successor of any Person identified in clause (i). For purposes of this definition, a Person (first person) is considered
to control another Person (second person) if: (a) the first person beneficially owns or directly or indirectly exercises control
or direction over securities of the second person carrying votes which, if exercised, would entitle the first person to elect a majority
of the directors of the second person, unless that first person holds the voting securities only to secure an obligation; (b) the
second person is a partnership, other than a limited partnership, and the first person holds more than 50% of the interests of the partnership;
or (c) the second person is a limited partnership and the general partner of the limited partnership is the first person.
“Issue Date” means December 6,
2023.
“Issuer” means GFL Environmental
Inc. (and not any of its Subsidiaries or Affiliates), until a successor Person shall have become such pursuant to the applicable provisions
of this Indenture and thereafter “Issuer” shall mean such successor Person.
“Issuer Order” means a written
request or order signed in the name of the Issuer by one Officer and delivered to the Trustee.
“Joinder Agreement” means a
joinder to the First Lien Intercreditor Agreement substantially in the form set forth therein.
“Junior Lien Priority” means
Indebtedness that is secured by a Lien on the Collateral that is junior in priority to the Liens on the Collateral securing the Notes
and subject to a second lien intercreditor agreement (it being understood that junior Liens are not required to rank equally and ratably
with other junior Liens, and that Indebtedness secured by junior Liens may be secured by Liens that are senior in priority to, or rank
equally and ratably with, or junior in priority to, other Liens constituting junior Liens).
“Lien” means any mortgage,
lien (statutory or otherwise), pledge, charge, security interest or encumbrance upon or with respect to any property of any kind, whether
or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention agreement;
provided that in no event shall Non-Financing Lease Obligations be deemed to constitute a Lien.
“Limited Condition Acquisition”
means any acquisition or Investment, including by way of merger, amalgamation or consolidation, by the Issuer or one or more of its Restricted
Subsidiaries whose consummation is not conditional upon the availability of, or on obtaining, third party financing.
“Major Non-Controlling Authorized Representative”
means, with respect to any Collateral, (i) at any time when any of the First Lien Revolving Credit Agreement Collateral Agent, the
First Lien Term Loan Collateral Agent, the 3.500% 2028 Secured Notes Collateral Agent, the 3.750% 2025 Secured Notes Collateral Agent,
the 4.250% 2025 Secured Notes Collateral Agent, the 5.125% 2026 Secured Notes Collateral Agent or the Notes Collateral Agent is the Controlling
Collateral Agent, the Authorized Representative of the Series of First Lien Obligations, if any, that constitutes the largest outstanding
principal amount of any then outstanding Series of First Lien Obligations (including the First Lien Revolving Credit Agreement Obligations,
the First Lien Term Loan Obligations, the 3.500% 2028 Secured Notes Obligations, the 3.750% 2025 Secured Notes Obligations, the 4.250%
2025 Secured Notes Obligations, the 5.125% 2026 Secured Notes Obligations and the Notes Obligations) (provided, however,
that if there are two outstanding Series of Additional First Lien Obligations which have an equal outstanding principal amount,
the Series of Additional First Lien Obligations with the earlier maturity date shall be considered to have the larger outstanding
principal amount for purposes of this clause (i)) and (ii) at any time when the Additional First Lien Collateral Agent is the Controlling
Collateral Agent, the Authorized Representative of the Series of Additional First Lien Obligations that constitutes the largest
outstanding principal amount of any then outstanding Series of First Lien Obligations (other than First Lien Revolving Credit Agreement
Obligations, First Lien Term Loan Obligations, the 3.500% 2028 Secured Notes Obligations, the 3.750% 2025 Secured Notes Obligations,
the 4.250% 2025 Secured Notes Obligations, the 5.125% 2026 Secured Notes Obligations and the Notes Obligations, if any) with respect
to such Shared Collateral (provided, however, that if there are two outstanding Series of Additional First Lien Obligations
which have an equal outstanding principal amount, the Series of Additional First Lien Obligations with the earlier maturity date
shall be considered to have the larger outstanding principal amount for purposes of this clause (ii); provided, further,
that if the Notes Collateral Agent is such Major Non-Controlling Authorized Representative it shall act pursuant to instructions from
the Holders of a majority of the Notes outstanding). Notwithstanding the foregoing and for the avoidance of doubt, the Controlling Collateral
Agent may not also act as the Major Non-Controlling Authorized Representative (unless there is only one Series of First Lien Obligations
outstanding at such time).
“Market Capitalization” means
an amount equal to (i) the total number of issued and outstanding shares of common Equity Interests of the Issuer or any parent entity
on a Business Day not more than five Business Days prior to the date of the declaration or making of a Restricted Payment permitted pursuant
to Section 4.4(c)(12) multiplied by (ii) the arithmetic mean of the closing prices per share of such common Equity Interests
on the principal securities exchange on which such common Equity Interests are traded for the 30 consecutive trading days immediately
preceding the date of declaration of such Restricted Payment.
“Material Real Property” means
any fee-owned real property located in the United States or Canada that is owned by the Issuer or a Guarantor and (x) is set forth
in the First Lien Term Loan Credit Agreement or (y) is acquired after the closing date of the First Lien Term Loan Credit Agreement
with an individual book value in excess of $15,000,000 (as determined by the Issuer acting in good faith), except for any such real property
that is located in a mortgage tax jurisdiction.
“Material Restricted Subsidiary”
means each Restricted Subsidiary of the Issuer (a) whose proportionate share of the Total Assets (after intercompany eliminations)
exceeds 5.0% as of the end of the most recently completed fiscal quarter for which internal annual or quarterly financial statements are
available, or (b) which contributed in excess of 5.0% of Consolidated EBITDA for the most recently completed four fiscal quarters
for which internal annual or quarterly financial statements are available.
“Material Subsidiary” means
any Restricted Subsidiary that is not an Immaterial Subsidiary.
“Merger Agreement” means that
certain Agreement and Plan of Merger, dated as of October 9, 2018, by and among Wrangler Super Holdco Corp., GFL Environmental Holdings
Inc., Betty Merger Sub Inc., the Issuer, solely for purposes of Article X thereof, and Wrangler Aggregator Holdings, L.P., solely
in its capacity as the securityholder representative.
“Moody’s” means Moody’s
Investors Service, Inc. or any successor to the rating agency business thereof.
“Mortgages” means collectively,
the deeds of trust, trust deeds, deeds to secure debt, hypothecs, debentures and mortgages made by the Issuer and the Guarantors in favor
or for the benefit of the Notes Collateral Agent in form and substance reasonably satisfactory to the Notes Collateral Agent, executed,
delivered and filed, registered or recorded, as applicable, pursuant to Section 4.22.
“Municipal Waste Contract” means
any contract or franchise agreement with a municipality for waste management services, including collection, hauling, disposal and/or
processing services, or any local ordinance granting an exclusive waste management services franchise, including collection, hauling disposal
and/or processing services.
“Net Cash Proceeds” means, with
respect to any issuance or sale of Equity Interests, the cash proceeds of such issuance or sale net of attorneys’ fees, accountants’
fees, underwriters’ or placement agents’ fees, listing fees, discounts or commissions and brokerage, consultant and other
fees and charges actually incurred in connection with such issuance or sale and net of taxes paid or payable as a result of such issuance
or sale.
“Net Income” means, with respect
to any Person, the net income (loss) of such Person, determined in accordance with GAAP.
“Net Proceeds” means, with respect
to any Asset Sale, the proceeds therefrom in the form of cash or Cash Equivalents, including payments in respect of deferred payment obligations
when received in the form of cash or Cash Equivalents, or stock or other assets when disposed of for cash or Cash Equivalents, received
by the Issuer or any of the Restricted Subsidiaries from such Asset Sale, net of:
| (1) | all legal, title, engineering and environmental fees and expenses (including fees and expenses of legal counsel, advisors, accountants,
consultants and investment banks, sales commissions and relocation expenses) related to such Asset Sale; |
| (2) | provisions for all cash taxes payable or required to be accrued in accordance with GAAP as a result of such Asset Sale; |
| (3) | payments applied to the repayment of principal, premium (if any) and interest on Indebtedness where payment of such Indebtedness is
secured by a Lien on the assets or properties that are the subject of such Asset Sale; |
| (4) | amounts required to be paid to any Person owning a beneficial interest in the assets or properties that are subject to the Asset Sale;
and |
| (5) | appropriate amounts to be provided by the Issuer or any Restricted Subsidiary, as the case may be, as a reserve required in accordance
with GAAP against any liabilities associated with such Asset Sale and retained by the seller after such Asset Sale, including pension
and other post-employment benefit liabilities, liabilities related to environmental matters and liabilities under any indemnification
obligations associated with such Asset Sale; |
provided
that cash and/or Cash Equivalents in which the Issuer or a Restricted Subsidiary has an individual beneficial ownership shall not be deemed
to be received by the Issuer or a Restricted Subsidiary until such time as such cash and/or Cash Equivalents are free from any restrictions
under agreements with the other beneficial owners of such cash and/or Cash Equivalents which prevent the Issuer or a Restricted Subsidiary
from applying such cash and/or Cash Equivalents to any use permitted by Section 4.7 or to purchase Notes.
“New Project” means (x) each
plant, facility, branch, office, transfer station, landfill, convenience site which is either a new plant, facility, branch, office, transfer
station, landfill, convenience site or an expansion, relocation, remodeling, refurbishment or substantial modernization of an existing
plant, facility, branch, office, transfer station, landfill, convenience site owned by the Issuer or the Restricted Subsidiaries which
in fact commences operations and (y) each creation (in one or a series of related transactions) of a, business unit, product line,
line of operations or service offering to the extent such business unit, product line, line of operations or service offering is offered
or each expansion (in one or series of related transactions) of business into a new market or service or through a new distribution method
or channel.
“Non-Controlling Authorized Representative”
means, at any time with respect to any Collateral, any Authorized Representative that is not the Applicable Authorized Representative
at such time with respect to such Shared Collateral.
“Non-Controlling Authorized Representative
Enforcement Date” means, with respect to any Non-Controlling Authorized Representative, the date which is 180 days (throughout
which 180 day period such Non-Controlling Authorized Representative was the Major Non-Controlling Authorized Representative) after the
occurrence of both (1) an Event of Default (under and as defined in this Indenture or other debt facility for the applicable Series of
First Lien Obligations under which such Non-Controlling Authorized Representative is the Authorized Representative) and (2) each
Collateral Agent’s and each other Authorized Representative’s receipt of written notice from such Non-Controlling Authorized
Representative certifying that (a) such Non-Controlling Authorized Representative is the Major Non-Controlling Authorized Representative
and that an Event of Default (under and as defined in the Additional First Lien Document under which such Non-Controlling Authorized Representative
is the Authorized Representative) has occurred and is continuing and (b) the First Lien Obligations of the Series with respect
to which such Non-Controlling Authorized Representative is the Authorized Representative are currently due and payable in full (whether
as a result of acceleration thereof or otherwise) in accordance with the terms of this Indenture or other debt facility for the applicable
Series of First Lien Obligations; provided that the Non-Controlling Authorized Representative Enforcement Date shall be stayed
and shall not occur and shall be deemed not to have occurred with respect to any Shared Collateral (x) at any time the First Lien
Revolving Credit Agreement Administrative Agent, the First Lien Revolving Credit Agreement Collateral Agent, the First Lien Term Loan
Administrative Agent or the First Lien Term Loan Collateral Agent, as applicable, has commenced and is diligently pursuing any enforcement
action with respect to such Shared Collateral or (y) at any time the Issuer or Guarantor which has granted a security interest in
such Shared Collateral is then a debtor under or with respect to (or otherwise subject to) any Insolvency or Liquidation Proceeding.
“Non-Financing Lease” means
any lease determined in accordance with GAAP other than (i) a Financing Lease and (ii) a lease that in accordance with GAAP
is an exempt or excluded lease.
“Non-Financing Lease Obligation”
means, as to any Person, the obligations of such Person under a Non-Financing Lease.
“Non-Recourse Debt” means Indebtedness:
| (1) | as to which neither the Issuer nor any of its Restricted Subsidiaries (a) provides credit support of any kind (including any
undertaking, agreement or instrument that would constitute Indebtedness), (b) is directly or indirectly liable as a guarantor or
otherwise, or (c) constitutes the lender; and |
| (2) | no default with respect to which (including any rights that the holders of the Indebtedness may have to take enforcement action against
an Unrestricted Subsidiary) would permit upon notice, lapse of time or both any holder of any other Indebtedness (other than the Notes)
of the Issuer or any of its Restricted Subsidiaries to declare a default on such other Indebtedness or cause the payment of such Indebtedness
to be accelerated or payable prior to its Stated Maturity. |
“Note Guarantee” means any guarantee
of the obligations of the Issuer under this Indenture and the Notes by any Person in accordance with the provisions of this Indenture.
“Notes” means notes issued under
this Indenture. The Initial Notes and any Additional Notes shall be treated as a single class for all purposes under this Indenture, including
waivers, amendments, redemptions and offers to purchase (except that if the Additional Notes are not fungible with the Initial Notes for
U.S. and Canadian federal income tax purposes, the Additional Notes will have a separate CUSIP number), and unless otherwise provided
or the context otherwise requires, all references to the Notes shall include the Initial Notes and any Additional Notes.
“Notes Custodian” means the
custodian with respect to a Global Note (as appointed by the Depositary) or any successor Person, and shall initially be Computershare
Trust Company, N.A.
“Notes Obligations” means the
Obligations and all other obligations in respect of the Notes, this Indenture, the Note Guarantees and the other Collateral Documents
relating to the Notes.
“Notes Secured Parties” means
the Trustee, the Notes Collateral Agent and the Holders of the Notes.
“Offering Memorandum” means
the offering memorandum, dated November 29, 2023, relating to the offering of the Initial Notes.
“Officer” means any of the Chairman
of the Board, Chief Executive Officer, the President, the Chief Financial Officer, the Treasurer, Executive Vice President, Senior Vice
President, the principal accounting officer, the Secretary or any Assistant Secretary, any Executive Vice President, Senior Vice President
or any Vice President of the Issuer.
“Officer’s Certificate”
means a certificate signed by any Officer, or the Corporate Secretary, of the Issuer and delivered to the Trustee.
“Opinion of Counsel” means a
written opinion from legal counsel that complies with Sections 12.3 and 12.4 of this Indenture and is delivered to the Trustee
or other applicable party. The counsel may be an employee of or counsel to the Issuer, and such counsel shall be acceptable to the Trustee.
Any such opinion may be subject to customary assumptions and exclusions.
“Pari Passu Indebtedness” means:
(a) with respect to the Issuer, the Notes and any Indebtedness that ranks pari passu in right of payment to the Notes; and (b) with
respect to any Guarantor, its Note Guarantee and any Indebtedness which ranks pari passu in right of payment to such Guarantor’s
Note Guarantee.
“Participant” means, with respect
to the Depositary, Euroclear or Clearstream, a Person who has an account with the Depositary, Euroclear or Clearstream, respectively (and,
with respect to The Depository Trust Company, shall include Euroclear and Clearstream).
“Permitted Assets” means any
and all properties or assets that are used or useful in a Permitted Business (including Capital Stock in a Person that is a Restricted
Subsidiary and Capital Stock in a Person whose primary business is a Permitted Business that shall become a Restricted Subsidiary immediately
upon the acquisition of such Capital Stock by the Issuer or by a Restricted Subsidiary, but excluding any other securities).
“Permitted Business” means any
business conducted (as described in the Offering Memorandum) by the Issuer and the Restricted Subsidiaries on the Issue Date, and other
businesses reasonably related or ancillary thereto or that are a reasonable extension or development thereof.
“Permitted Holder” means:
| (1) | each of the Investors and members of management of the Issuer who are holders of Equity Interests of the Issuer on the Issue Date; |
| (2) | any Group (as defined in the definition of Change of Control) of which any of the foregoing are members; |
| (3) | any member of any such Group; and |
| (4) | any other Person or Group; provided that in the case of this clause (4): (a) Patrick Dovigi and his Affiliates, BC Partners
Advisors L.P., Ontario Teachers’ Pension Plan Board, GIC Private Ltd. and the members of management of the Issuer who were holders
of Equity Interests of the Issuer on the Issue Date continue to hold in the aggregate not less than 40% of the Voting Stock of the Issuer,
measured by voting power rather than number of shares; and (b) such Person or Group and the Persons described in the foregoing subclause
(a) are party to a shareholders’ agreement in respect of their respective Equity Interests of the Issuer. |
“Permitted Investments”
means, without duplication:
| (1) | any Investment in the Issuer or in a Restricted Subsidiary; |
| (2) | any Investment in cash or Cash
Equivalents; |
| (3) | any Investment in a Person or division or line of business of a Person, if as a result of, or concurrently with, such Investment: |
| (a) | such Person becomes a Restricted Subsidiary (or a division or line of business is owned by a Restricted Subsidiary), or |
| (b) | such Person, in one transaction or a series of transactions, is merged, consolidated or amalgamated with or into, or transfers or
conveys substantially all of its assets to, or is liquidated into, the Issuer or a Restricted Subsidiary; |
| (4) | any Investment made as a result of the receipt of non-cash consideration from an Asset Sale that was made pursuant to and in compliance
with Section 4.7; |
| (5) | any acquisition of assets or other Investments in a Person solely in exchange for the issuance of Capital Stock (other than Disqualified
Stock) of the Issuer or warrants, options or other rights to acquire Capital Stock (other than Disqualified Stock) of the Issuer; |
| (6) | Investments resulting from repurchases of the Notes or the Existing Notes; |
| (7) | any Investments received in compromise of (a) obligations of trade creditors or customers that were incurred in the ordinary
course of business, including pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of any trade
creditor or customer or (b) litigation, arbitration or other disputes; |
| (8) | Hedging Obligations incurred in the ordinary course of business and not for speculative purposes; |
| (9) | Investments (a) existing on, or made pursuant to binding commitments existing on, the Issue Date or (b) that are an extension,
modification or renewal of any such Investments described under the preceding clause (a), but only to the extent not involving additional
advances, contributions or other Investments of cash or other assets or other increases thereof, except as otherwise permitted under this
Indenture, and Investments made with the proceeds, including, without limitation, from sales or other dispositions, of such Investments
and any other Investments made pursuant to this clause (9); |
| (10) | guarantees issued in accordance with Section 4.3; |
| (11) | guarantees of performance or other obligations (other than Indebtedness) arising in the ordinary course of business; |
| (12) | Investments consisting of purchases and acquisitions of assets or services in the ordinary course of business; |
| (13) | accounts receivable, security deposits and prepayments and other credits granted or made in the ordinary course of business and any
Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and others, including in
connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with or judgments against, such
account debtors and others, in each case, in the ordinary course of business; |
| (14) | advances in the form of a prepayment of expenses, so long as such expenses are being paid in accordance with customary trade terms
of the Issuer or its Restricted Subsidiaries; |
| (15) | guarantees of operating leases (for the avoidance of doubt, excluding Financing Lease Obligations) or of other obligations that do
not constitute Indebtedness, in each case, entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business; |
| (16) | intercompany current liabilities owed to Unrestricted Subsidiaries or joint ventures incurred in the ordinary course of business in
connection with the cash management operations of the Issuer and its Subsidiaries; |
| (17) | Investments made in the ordinary course of business in connection with obtaining, maintaining or renewing client and customer contracts
and loans or advances made to, and guarantees with respect to obligations of, distributors, suppliers, licensors and licensees in the
ordinary course of business; |
| (18) | loans or advances made to officers, directors or employees of the Issuer or any of its Restricted Subsidiaries; provided that
the aggregate principal amount outstanding at any time under this clause (18) shall not exceed the greater of $10 million and 1.0% of
Total Assets as of any date of incurrence (after giving effect to such Investment); |
| (19) | Investments of a Restricted Subsidiary acquired after the Issue Date or of an entity merged into, amalgamated with, or consolidated
with the Issuer or any of its Restricted Subsidiaries in a transaction that is not prohibited by Section 5.1 after the Issue
Date to the extent that such Investments were not made in contemplation of such acquisition, merger, amalgamation or consolidation and
were in existence on the date of such acquisition, merger, amalgamation or consolidation; |
| (20) | Investments by the Issuer or a Restricted Subsidiary in (i) joint ventures and (ii) Subsidiaries that are not wholly owned,
in an aggregate amount, taken together with all other Investments made pursuant to this clause (20), not to exceed the greater of $60
million and 2.0% of Total Assets determined at the time of such Investment (after giving effect to such Investment); |
| (21) | other Investments in any Person having an aggregate Fair Market Value (measured on the date each such Investment was made and without
giving effect to subsequent changes in value), when taken together with all other Investments made pursuant to this clause (21) that are
at the time outstanding not to exceed the greater of (i) $175 million and (ii) 6.0% of Total Assets as of any date of incurrence
(after giving effect to such Investment); |
| (22) | Investments in a Similar Business not to exceed the greater of (i) $175 million and (ii) 6.0% of Total Assets as of any
date of incurrence (after giving effect to such Investment); and |
| (23) | Investments in an unlimited amount so long as on the earlier of the date on which the Investment is made and the date on which the
definitive agreement governing the relevant Investment containing a legally binding commitment to make such Investment is made, immediately
after giving effect thereto and the incurrence of any Indebtedness to be incurred in connection therewith, the Issuer shall be in compliance
with a Consolidated Net Leverage Ratio of equal to or less than 5.50:1.00 (after giving effect to such Investment) as of the last day
of the most recently ended four quarters for which internal financial information is available preceding such Investment. |
“Permitted Liens” means, as
of any date:
| (1) | Liens securing (i) Indebtedness permitted to be incurred pursuant to Section 4.3(b)(1) (measured at the time
of the incurrence of such Indebtedness and giving effect to the application of the proceeds therefrom) and any other obligations related
thereto (including, for the avoidance of doubt, Liens to secure the Notes to the extent incurred pursuant to such Section 4.3(b)(1) and
the Note Guarantees thereof), (ii) the maximum principal amount of Indebtedness such that, as of the date any such Indebtedness was
incurred (after giving effect to the incurrence of such Indebtedness and the application of the proceeds therefrom), the Secured Net Leverage
Ratio of the Issuer and its Restricted Subsidiaries would not exceed 5.50 to 1.00, and (iii) Cash Management Obligations incurred
by the Issuer or a Restricted Subsidiary of the Issuer in the ordinary course of business; |
| (2) | Liens in favor of the Issuer of any of its Restricted Subsidiaries; |
| (3) | Liens on property, assets or shares of stock of a Person existing at the time such Person is acquired by or amalgamated or merged
with or into or consolidated with the Issuer or any Restricted Subsidiary; provided that such Liens were in existence prior to,
and were not created in contemplation of, such acquisition, amalgamation, merger or consolidation and do not extend to any assets other
than those of the Person acquired by or amalgamated or merged into or consolidated with the Issuer or the Restricted Subsidiary (other
than pursuant to after-acquired property clauses in effect with respect to such Lien at the time of acquisition or property of the type
that would have been subject to such Lien notwithstanding the occurrence of such acquisition); |
| (4) | Liens securing Hedging Obligations incurred in the ordinary course of business and not for speculative purposes; |
| (5) | Liens for any judgment rendered, or claim filed, against the Issuer or any Restricted Subsidiary which is being contested in good
faith by appropriate proceedings and that does not constitute an Event of Default if during such contestation a stay of enforcement of
such judgment or claim is in effect; |
| (6) | Liens on property, assets or shares of stock existing at the time of acquisition of such property by the Issuer or any Restricted
Subsidiary; provided that (A) such Liens do not extend to any other property of the Issuer or any Restricted Subsidiary (other
than pursuant to after-acquired property clauses in effect with respect to such Lien at the time of acquisition or property of the type
that would have been subject to such Lien notwithstanding the occurrence of such acquisition) and were in existence prior to, and were
not created in contemplation of, such acquisition (other than Liens to secure Indebtedness pursuant to Section 4.3(b)(2))
or (B) after giving pro forma effect to the incurrence or issuance of Indebtedness, Disqualified Stock or preferred stock,
the Secured Net Leverage Ratio would be no greater than either (i) 5.50 to 1.00 or (ii) the Secured Net Leverage Ratio immediately
prior to giving effect to such transaction; |
| (7) | Liens incurred or deposits made to secure the performance of or otherwise in connection with statutory obligations, environmental
reclamation obligations, bids, leases, government contracts, surety or appeal bonds, performance or return-of-money bonds or other obligations
of a like nature incurred in the ordinary course of business, including letters of credit, performance bonds and other reimbursement obligations
permitted by Section 4.3(b)(2); |
| (8) | Liens securing Indebtedness (including Financing Lease Obligations) permitted by Section 4.3(b)(4) covering the assets
acquired, developed or improved with such Indebtedness; |
| (9) | Liens securing Indebtedness permitted by Section 4.3(b)(14), Section 4.3(b)(15) and Section 4.3(b)(17); |
| (10) | Liens existing on the Issue Date (other than Liens described in clause (1) above); |
| (11) | Liens for taxes, workers’ compensation, unemployment insurance and other types of social security, assessments or other governmental
charges or claims that are not yet due and payable or, if due and payable and delinquent for a period of more than 30 days, that are being
contested by the Issuer or a Restricted Subsidiary in good faith by appropriate proceedings promptly instituted and diligently conducted;
provided that any reserve or other appropriate provision as is required in conformity with GAAP has been made therefor; |
| (12) | licenses, permits, reservations, covenants, servitudes, easements, rights-of-way and rights in the nature of easements (including,
without limiting the generality of the foregoing, in respect of sidewalks, public ways, sewers, drains, gas, steam and water mains or
electric light and power, or telephone and telegraph conduits, poles, wires and cables) and zoning, land use and building restrictions,
by-laws, regulations and ordinances of federal, provincial, regional, state, municipal and other governmental authorities; |
| (13) | Liens imposed by law that are incurred in the ordinary course of business and do not secure Indebtedness for borrowed money, such
as carriers’, warehousemen’s, mechanics’, landlords’, materialmen’s, employees’, laborers’,
employers’, suppliers’, banks’, builders’, repairmen’s and other like Liens; |
| (14) | easements, rights-of-way, zoning restrictions and other similar charges, restrictions or encumbrances in respect of real property
or immaterial imperfections of title that do not, in the aggregate, impair in any material respect the ordinary conduct of the business
of the Issuer and its Restricted Subsidiaries taken as a whole; |
| (15) | Liens securing Permitted Refinancing Indebtedness in respect of Indebtedness that was secured by Permitted Liens; provided
that such Liens secure only the same property (including any after-acquired property to the extent it would have been subject to the original
Lien, plus improvements and accessions to, such property or proceeds or distributions thereof) as such Permitted Liens; |
| (16) | Liens given to a public utility or any municipality or governmental or other public authority when required by such utility or other
authority in connection with the operation of the business or the ownership of the assets of the Issuer or any of its Restricted Subsidiaries; |
| (17) | Liens arising from precautionary Personal Property Security Act or Uniform Commercial Code (or its equivalent) financing statement
filings regarding operating leases entered into by the Issuer and its Restricted Subsidiaries in the ordinary course of business; |
| (18) | applicable municipal and other governmental restrictions, including municipal by laws and regulations, affecting the use of land or
the nature of any structures which may be erected thereon; provided such restrictions have been complied with; |
| (19) | subdivision agreements, site plan control agreements, servicing agreements, development agreements, facilities sharing agreements,
cost sharing agreements and other similar agreements provided they do not materially impair the use of the affected property for the purpose
for which it is used by the Issuer or its Restricted Subsidiary, as the case may be, or materially impair the value of the property subject
thereto or interfere with the ordinary conduct of the business of such Person and provided the same are complied with; |
| (20) | landlord distraint rights and similar rights arising under the leasehold interests of the Issuer and its Restricted Subsidiaries limited
to the assets located at or about such leased properties; |
| (21) | title defects, encroachments or irregularities which are of a minor nature; |
| (22) | the reservations, limitations, provisos and conditions, if any, expressed in any original grant from the Crown of any real property
or any interest therein or in any comparable grant in jurisdictions other than Canada; |
| (23) | Liens in favor of customs, revenue, and taxation authorities arising by operation of law; |
| (24) | leases, subleases, licenses, sublicenses, occupancy agreements or assignments of or in respect of real or personal property; |
| (25) | Liens on equipment of the Issuer or any Restricted Subsidiary granted in the ordinary course of business to the Issuer’s or
such Restricted Subsidiary’s client at which such equipment is located; |
| (26) | (a) Liens solely on any cash earnest money deposits made by the Issuer or any Restricted Subsidiary in connection with any letter
of intent or other agreement in respect of any Permitted Investment and (b) Liens on advances of cash or Cash Equivalents in favor
of the seller of any property to be acquired in a Permitted Investment to be applied against the purchase price for such Investment; |
| (27) | Liens on the Equity Interests of Unrestricted Subsidiaries; |
| (28) | other Liens securing related obligations in an aggregate outstanding principal amount not to exceed the greater of (i) $240.0
million and (ii) 60.0% of Consolidated EBITDA for the most recently completed four fiscal quarters for which internal annual or quarterly
financial statements are available calculated in a manner consistent with any pro forma adjustments to Consolidated EBITDA set forth in
the definition of Fixed Charge Coverage Ratio; |
| (29) | Liens securing the Notes (other than any Additional Notes) and the related Note Guarantees; and |
| (30) | Liens in favor of landlords securing obligations under real property leases, provided that such liens only attach to the movable
property located on the premises subject to such real property leases and that such premises are located in the Province of Quebec. |
For purposes of determining compliance with this
definition, (A) a Lien need not be incurred solely by reference to one category of Permitted Liens described in this definition but
is permitted to be incurred in part under any combination thereof and of any other available exemption, (B) in the event that a Lien
(or any portion thereof) meets the criteria of one or more of the categories of Permitted Liens, the Issuer will, in its sole discretion,
be entitled to divide, classify or reclassify, in whole or in part, any such Lien (or any portion thereof) among one or more such categories
or clauses in any manner that complies with this definition and (C) in the event that a portion of Indebtedness secured by a Lien
could be classified as secured in part pursuant to clause (1)(ii) above (giving pro forma effect only to the incurrence of such portion
of such Indebtedness), the Issuer, in its sole discretion, may classify such portion of such Indebtedness (and any obligations in respect
thereof) as having been secured pursuant to clause (1)(ii) above and thereafter the remainder of the Indebtedness as having been
secured pursuant to one or more of the other clauses of this definition.
“Permitted Refinancing Indebtedness”
means any Indebtedness of the Issuer or any of its Restricted Subsidiaries issued in exchange for, or the net proceeds of which are used
to extend, refinance, renew, replace, defease, discharge or refund other Indebtedness of the Issuer or any of its Restricted Subsidiaries
(other than intercompany Indebtedness); provided that:
| (1) | the principal amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness does not exceed the principal amount
(or accreted value, if applicable) or, if greater, committed amount (only to the extent the committed amount could have been incurred
on the date of initial incurrence and was deemed incurred at such time for the purposes of Section 4.3) of the Indebtedness
extended, refinanced, renewed, replaced, defeased, discharged or refunded (plus all accrued interest on the Indebtedness and the amount
of all fees, defeasance costs, expenses and premiums (including tender premiums) incurred in connection therewith); |
| (2) | the Stated Maturity of the principal of such Permitted Refinancing Indebtedness is (i) no earlier than the Stated Maturity of
the principal of the Indebtedness being extended, refinanced, renewed, replaced, defeased, discharged or refunded, or (ii) at least
91 days after the Stated Maturity of the principal of the Notes; |
| (3) | the Permitted Refinancing Indebtedness has a Weighted Average Life to Maturity at the time such Permitted Refinancing Indebtedness
is incurred that is equal to or greater than the Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed,
replaced, deferred, discharged or refunded; |
| (4) | if the Indebtedness being extended, refinanced, renewed, replaced, defeased, discharged or refunded is Subordinated Indebtedness of
the obligor thereon, such Permitted Refinancing Indebtedness is subordinated in right of payment to the Notes issued by, or the Note Guarantee
of, the obligor thereon, as the case may be, on terms at least as favorable, taken as a whole, to the Holders of Notes as those contained
in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, defeased, discharged or refunded; |
| (5) | if such Permitted Refinancing Indebtedness is secured, the Lien does not apply to any property or assets of the Issuer or any of its
Restricted Subsidiaries other than such property or assets securing the Indebtedness being extended, refinanced, renewed, replaced, defeased,
discharged or refunded (including any after-acquired property to the extent it would have been subject to the original Lien, plus improvements
and accessions to, such property or proceeds or distributions thereof); and |
| (6) | such Permitted Refinancing Indebtedness is incurred by the Person that was the obligor on the Indebtedness being extended, refinanced,
renewed, replaced, defeased, discharged or refunded and is guaranteed only by Persons who were obligors on the Indebtedness being extended,
refinanced, renewed, replaced, defeased, discharged or refunded. |
“Person” means any individual,
corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited liability company
or government, government body or agency or other entity.
“Pledge Agreement” means each
of the U.S. Pledge Agreement and the Canadian Pledge Agreement.
“PPSA” means the Personal Property
Security Act (Ontario) in effect from time to time, provided however, that, at any time, if by reason of mandatory provisions of
law, any or all of the perfection or priority of the Notes Collateral Agent’s security interest in any item or portion of the Collateral
is governed by the PPSA as in effect in a Canadian jurisdiction other than the Province of Ontario, the term “PPSA” shall
mean the Personal Property Security Act or such other applicable legislation (including the Civil Code of Quebec) as in effect, at such
time, in such other jurisdiction for purposes of the provisions hereof relating to such perfection or priority and for purposes of definitions
relating to such provisions.
“Private Placement Legend” means
the legend set forth in Section 2.6(f)(1) to be placed on all Notes issued under this Indenture except where otherwise
permitted by the provisions of this Indenture.
“Purchase Money Obligations”
means Indebtedness of the Issuer and its Restricted Subsidiaries incurred for the purpose of financing all or any part of the purchase
price, or the cost of installation, construction or improvement, of Permitted Assets.
“Put-or-Pay Agreement” means,
with respect to the Issuer, any put-or-pay volume contract, entered into by the Issuer or any Restricted Subsidiary with a counterparty,
pursuant to which the counterparty retains the Issuer or the Issuer retains the counterparty, to provide waste management services including
collection, hauling, disposal or processing services and guarantees a minimum tonnage for such services or payment in lieu of such services.
“QIB” means any “qualified
institutional buyer” (as defined in Rule 144A).
“Record Date” means the date
specified for determining holders entitled to receive interest on the Notes on any Interest Payment Date.
“Redemption Date,” when used
with respect to any Note to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture.
“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.
“Regulation S” means Regulation
S promulgated under the 1933 Act.
“Regulation S Global Note” means
a permanent Global Note substantially in the form of Exhibit A, bearing the Global Note Legend, the Private Placement Legend
and (unless such legend is no longer required by the provisions of this Indenture) the Canadian Legend, that has the “Schedule
of Exchanges of Interests in the Global Note” attached thereto, and that is deposited with or on behalf of, and registered in
the name of, the Depositary or its nominee, issued in a denomination equal to the outstanding principal amount of the Notes initially
sold in reliance on Regulation S.
“Repay” means, in respect of
any Indebtedness, to repay, prepay, repurchase, redeem, legally defease or otherwise retire such Indebtedness. “Repayment”
and “Repaid” shall have correlative meanings.
“Required First Lien Credit Agreement
Secured Parties” means, at any time with respect to any matter, First Lien Revolving Credit Agreement Secured Parties and First
Lien Term Loan Secured Parties (collectively) owed or holding a majority of the sum of (without duplication and subject to any voting
restrictions set forth in the First Lien Revolving Credit Agreement and the First Lien Term Loan Agreement, as applicable) the aggregate
amount of outstanding loans, participations and letters of credit and unused commitments under the First Lien Revolving Credit Agreement
and the First Lien Term Loan Agreement at such time.
“Required First Lien Term Loan Lenders”
means the “Required Lenders” (or any similarly defined term) as defined in the First Lien Term Loan Agreement.
“Resale Restriction Termination Date”
means (i) in the case of Notes initially sold in reliance on Rule 144A, the date that is one year after the later of the Issue
Date (or the date of original issue of any Additional Notes) and the last date on which the Issuer or any Affiliate of the Issuer was
the owner of such Notes (or any predecessor Notes) or (ii) in the case of Notes initially sold in reliance on Regulation S, 40 days
after the later of the Issue Date (or the date of original issue of any Additional Notes) and the date on which Notes (or any predecessor
Notes) were first offered to persons other than distributors (as defined in Rule 902 of Regulation S) in reliance on Regulation S.
“Restricted Definitive Note”
means a Definitive Note bearing the Private Placement Legend.
“Restricted Global Note” means
a Global Note bearing the Private Placement Legend (including the Regulation S Global Note).
“Restricted Investment” means
an Investment other than a Permitted Investment.
“Restricted Note” means either
a Restricted Definitive Note or a Restricted Global Note.
“Restricted Period” means the
40-day distribution compliance period as defined in Regulation S.
“Restricted Subsidiary” of a
Person means any Subsidiary of such Person that is not an Unrestricted Subsidiary. Unless otherwise indicated in this Indenture, a reference
to a Restricted Subsidiary shall mean a Restricted Subsidiary of the Issuer.
“Rule 144” means Rule 144
promulgated under the 1933 Act.
“Rule 144A” means Rule 144A
promulgated under the 1933 Act.
“Rule 904” means Rule 904
promulgated under the 1933 Act.
“S&P” means S&P Global
Ratings, a division of The McGraw-Hill Companies, Inc., or any successor to the rating agency business thereof.
“Sale/Leaseback Transaction”
means an arrangement relating to property owned by the Issuer or a Restricted Subsidiary on the Issue Date or thereafter acquired by the
Issuer or a Restricted Subsidiary whereby the Issuer or a Restricted Subsidiary transfers such property to a Person and the Issuer or
a Restricted Subsidiary leases it from such Person, other than leases between or among the Issuer and any of its Restricted Subsidiaries.
“Secured Indebtedness” means
any Indebtedness secured by a Lien.
“Secured Net Leverage Ratio”
means, as of any date of determination with respect to any Person, the ratio of (1)(i)(x) Secured Indebtedness (other than Indebtedness
secured by the Collateral with a Junior Lien Priority relative to the Notes and the Note Guarantees) of such Person and its Restricted
Subsidiaries as of such date of calculation (determined on a consolidated basis in accordance with GAAP) and (y) the Reserved Indebtedness
Amount applicable at such time to the calculation of the Secured Net Leverage Ratio with respect to commitments first obtained as of such
date but not utilized as of such date (but only to the extent such commitments are being obtained in reliance on a test based on such
ratio and the Issuer has so elected to test such ratios at such time) minus (ii) the sum of (x) cash and Cash Equivalents of
the Issuer and its Restricted Subsidiaries as of such date of calculation plus (y) any cash in a trust account of counsel to the
Issuer or any of its Restricted Subsidiaries or counsel of a vendor in connection with the deposit of an amount on account of the purchase
price for an acquisition or investment and (2) Consolidated EBITDA of such Person and its Restricted Subsidiaries for the period
of the most recent four consecutive fiscal quarters ending prior to the date of such determination for which financial statements prepared
on a consolidated basis in accordance with GAAP are available. In the event that the Issuer or any of its Restricted Subsidiaries incurs
or redeems any Secured Indebtedness subsequent to the commencement of the period for which the Secured Net Leverage Ratio is being calculated
but prior to the event for which the calculation of the Secured Net Leverage Ratio is made, then the Secured Net Leverage Ratio shall
be calculated giving pro forma effect to such incurrence or redemption of Indebtedness as if the same had occurred at the beginning of
the applicable four fiscal quarter period; provided, however, that the pro forma calculation of Secured Indebtedness shall
not give effect to (i) any Secured Indebtedness incurred on the Calculation Date (other than Secured Indebtedness incurred pursuant
to clause (1)(i)(y) of Section 4.3(b) or clause (1)(ii) of the definition of Permitted Liens) or (ii) any
repayment, repurchase, redemption, defeasance or other discharge of Indebtedness to the extent such repayment, retirement, extinguishment,
defeasance or other discharge results from the proceeds of such Secured Indebtedness referred to in clause (i). The Secured Net Leverage
Ratio shall be calculated in a manner consistent with the definition of Fixed Charge Coverage Ratio, including any pro forma adjustments
to Secured Indebtedness and Consolidated EBITDA as set forth therein (including for acquisitions).
“Security Agreement” means each
of the U.S. Security Agreement and the Canadian Security Agreement.
“Series” means (a) with
respect to the First Lien Secured Parties, each of (i) the First Lien Revolving Credit Agreement Secured Parties (in their capacities
as such), (ii) the First Lien Term Loan Secured Parties (in their capacities as such), (iii) the 3.500% 2028 Secured Notes Secured
Parties, the 3.750% 2025 Secured Notes Secured Parties, the 4.250% 2025 Secured Notes Secured Parties, (vi) the 5.125% 2026 Secured
Notes Secured Parties, (v) the Notes Secured Parties and (vi) the Additional First Lien Secured Parties (in their capacities
as such) that become subject to the First Lien Intercreditor Agreement after the Issue Date that are represented by a common Authorized
Representative (in its capacity as such for such Additional First Lien Secured Parties) and (b) with respect to any First Lien Obligations,
each of (i) the First Lien Revolving Credit Agreement Obligations, (ii) the First Lien Term Loan Obligations, (iii) the
3.500% 2028 Secured Notes Obligations, (iv) the 3.750% 2025 Secured Notes Obligations, (v) the 4.250% 2025 Secured Notes Obligations,
(vi) the 5.125% 2026 Secured Notes Obligations, (vii) the Notes Obligations and (viii) the Additional First Lien Obligations
incurred after the date hereof pursuant to any Additional First Lien Document, which pursuant to any Joinder Agreement, are to be represented
hereunder by a common Authorized Representative (in its capacity as such for such Additional First Lien Obligations).
“Shared Collateral” means, at
any time, Collateral in which the holders of two or more Series of First Lien Obligations (or their respective Authorized Representatives
or Collateral Agents on behalf of such holders) hold a valid and perfected security interest at such time. If more than two Series of
First Lien Obligations are outstanding at any time and the holders of less than all Series of First Lien Obligations hold a valid
and perfected security interest in any Collateral at such time, then such Collateral shall constitute Shared Collateral for those Series of
First Lien Obligations that hold a valid security interest in such Collateral at such time and shall not constitute Shared Collateral
for any Series which does not have a valid and perfected security interest in such Collateral at such time.
“Significant Subsidiary” means
any Restricted Subsidiary that would be a “Significant Subsidiary” of the Issuer within the meaning of Rule 1-02
under Regulation S-X promulgated by the Commission (or any successor provision).
“Similar Business” means any
business conducted or proposed to be conducted by the Issuer and its Restricted Subsidiaries on the Issue Date or any business that is
similar, reasonably related, complementary, incidental or ancillary thereto, or is a reasonable extension, development or expansion thereof.
“Specified Legal Expenses” means,
to the extent not constituting an extraordinary, non-recurring or unusual loss, charge or expense, all attorneys’ and experts’
fees and expenses and all other costs, liabilities (including all damages, penalties, fines and indemnification and settlement payments)
and expenses paid or payable in connection with any threatened, pending, completed or future claim, demand, action, suit, proceeding,
inquiry or investigation (whether civil, criminal, administrative, governmental or investigative).
“Specified Transaction” means
any Investment that results in a Person becoming a Restricted Subsidiary, any designation of a Subsidiary as a Restricted Subsidiary or
an Unrestricted Subsidiary, any acquisition, any disposition that results in a Restricted Subsidiary ceasing to be a Subsidiary of the
Issuer or constitutes a disposition of a line of business or division that has an identifiable earnings stream, any Investment constituting
an acquisition of assets constituting a business unit, line of business or division of another Person or any disposition of a business
unit, line of business or division of the Issuer or a Restricted Subsidiary, in each case, whether by merger, consolidation, amalgamation
or otherwise, or any incurrence or repayment of Indebtedness, any Restricted Payment, any New Project or other event (other than the incurrence
or repayment of Indebtedness under any revolving credit facility in the ordinary course of business for working capital purposes), that
by the terms of this Indenture requires Consolidated EBITDA, Total Assets or a financial ratio or test to be calculated on a pro forma
basis or after giving pro forma effect.
“Stated Maturity” means, with
respect to any instalment of interest or principal on any series of Indebtedness, the date on which the payment of interest or principal
was scheduled to be paid in the original documentation governing such Indebtedness (as amended, supplemented or otherwise modified in
any manner that is not prohibited by this Indenture), and will not include any contingent obligations to repay, redeem or repurchase any
such interest or principal prior to the date originally scheduled for the payment thereof.
“Subordinated Indebtedness”
means Indebtedness of the Issuer or a Guarantor that is subordinated in right of payment to the Notes or the Note Guarantee issued by
the Issuer or such Guarantor, as the case may be.
“Subsidiary” means, with respect
to any specified Person:
| (1) | any corporation, association or other business entity of which more than 50% of the total voting power of shares of Capital Stock
entitled (without regard to the occurrence of any contingency) 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 or limited liability company if (i) more than 50% of the capital accounts, distribution rights, total equity
and voting interests or general or limited partnership interests, as applicable, thereof are owned or controlled, directly or indirectly,
by that Person or one or more of the other Subsidiaries of that Person (or a combination thereof), whether in the form of membership,
general, special or limited partnership interests or otherwise, and (ii) the specified Person, or any Subsidiary of the specified
Person, is a controlling general partner of, or otherwise controls, such entity. |
“Tax Act” means the Income Tax
Act (Canada).
“Taxes” means any present or
future tax, levy, impost, assessment or other government charge (including penalties, interest and any other liabilities related thereto)
imposed or levied by or on behalf of a Taxing Authority.
“Taxing Authority” means any
government or any political subdivision or territory or possession of any government or any authority or agency therein or thereof having
power to tax.
“Total Assets” means, as of
any date of determination, the total assets of the Issuer and the Restricted Subsidiaries without giving effect to any impairment or amortization
of the amount of intangible assets since the Issue Date, determined on a consolidated basis in accordance with GAAP, as set forth on the
consolidated balance sheet of the Issuer as of the last day of the fiscal quarter most recently ended for which financial statements have
been (or were required to be) delivered pursuant to Section 4.2(a)(1) and (a)(2) calculated on a pro forma
basis.
“Treasury Rate” means, as of
the applicable redemption date, as determined by the Issuer, the yield to maturity as of such redemption date of U.S. Treasury securities
with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) that has become
publicly available at least two Business Days prior to such redemption date (or, if such Statistical Release is no longer published, any
publicly available source of similar market data)) most nearly equal to the period from such redemption date to January 15, 2027;
provided, however, that if the period from such redemption date to January 15, 2027, as applicable, is less than one
year, the weekly average yield on actually traded U.S. Treasury securities adjusted to a constant maturity of one year will be used.
“Trust Indenture Act” or “TIA”
means the Trust Indenture Act of 1939 as in effect from time to time.
“Trust Officer” means, when
used with respect to the Trustee, any officer within the corporate trust department of the Trustee, including any vice president, assistant
vice president, trust officer or any other officer of the Trustee who customarily performs functions similar to those performed by the
Persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of such Person’s
knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.
“Trustee” means the Person named
as the “Trustee” in the first paragraph of this Indenture until a successor Trustee shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who is then
a Trustee hereunder.
“Uniform Commercial Code” means
the Uniform Commercial Code or any successor provision thereof as the same may from time to time be in effect in the State of New York
or the Uniform Commercial Code or any successor provision thereof (or similar code or statute) of another jurisdiction, to the extent
it may be required to apply to any item or items of Collateral.
“Unrestricted Definitive Note”
means one or more Definitive Notes that do not bear and are not required to bear the Private Placement Legend.
“Unrestricted Global Note” means
a permanent Global Note substantially in the form of Exhibit A, attached hereto that bears the Global Note Legend and that
has the “Schedule of Exchanges of Interests in the Global Note” attached thereto, and that is deposited with or on behalf
of and registered in the name of the Depositary, representing a series of Notes that do not bear the Private Placement Legend.
“Unrestricted Note” means either
an Unrestricted Definitive Note or an Unrestricted Global Note.
“Unrestricted Subsidiary” means
any Restricted Subsidiary (including a newly acquired or newly formed Subsidiary) of the Issuer that is designated by the Board of Directors
of the Issuer as an Unrestricted Subsidiary pursuant to Section 4.10, and includes any Subsidiary of an Unrestricted Subsidiary.
“U.S.” means the United States
of America.
“U.S. Person” means any U.S.
person as defined for purposes of Regulation S.
“U.S. Pledge Agreement”
means that certain Securities Pledge Agreement, dated as of the Issue Date, among the Issuer, the Guarantors that are U.S. persons and
the Notes Collateral Agent, as amended, restated, amended and restated, supplemented or otherwise modified from the time to time.
“U.S. Security Agreement” means
that certain Security Agreement, dated as of the Issue Date, entered into by the Issuer and the Guarantors that are U.S. persons in favor
of the Notes Collateral Agent, as amended, restated, amended and restated, supplemented or otherwise modified from the time to time.
“U.S. Subsidiary” means any
Subsidiary that is organized under the laws of the United States, any state thereof or the District of Columbia.
“Voting Stock” of any Person
as of any date means the Capital Stock of such Person that is at the time entitled to vote in the election of the Board of Directors of
such Person.
“Waste Industries Merger” means
the acquisition by the Issuer of Wrangler Super Holdco Corp. (as the indirect parent of Waste Industries USA, LLC and its subsidiaries)
(“Waste Industries”) pursuant to the Merger Agreement.
“Waste Industries Transactions”
means the Waste Industries Merger pursuant to the Merger Agreement and the related financing transactions in connection therewith that
were consummated on November 14, 2018.
“Weighted Average Life to Maturity”
means, when applied to any Indebtedness at any date, the number of years obtained by dividing:
| (1) | the sum of the products obtained by multiplying (a) the amount of each then remaining installment, sinking fund, serial maturity
or other required payments of principal, including payment at final maturity, in respect of the Indebtedness, by (b) the number of
years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by |
| (2) | the then-outstanding principal amount of such Indebtedness. |
“Wholly Owned Restricted Subsidiary”
of the Issuer means any Restricted Subsidiary of which all of the outstanding Voting Stock (other than directors’ qualifying shares
or shares required to be owned by other Persons pursuant to applicable law) is owned directly or indirectly by the Issuer or any other
Wholly Owned Restricted Subsidiary.
Section 1.2. Other
Definitions.
“Acceptable Commitment” |
Section 4.7(b)(5) |
|
|
“Accounting Change” |
Section 1.3(2) |
|
|
“Acquired Indebtedness” |
Section 4.3(c)(4) |
|
|
“Act” |
Section 12.16(a) |
|
|
“Action” |
Section 11.8(v) |
|
|
“Additional Amounts” |
Section 4.21(a) |
|
|
“Affiliate Transaction” |
Section 4.8 |
|
|
“Agreement Currency” |
Section 12.17(a) |
|
|
“Asset Sale Offer” |
Section 4.7(c) |
|
|
“Asset Sale Payment Date” |
Section 4.7(f) |
|
|
“Authenticating Agent” |
Section 2.2 |
|
|
“Authorized Agent” |
Section 12.7(c) |
|
|
“Calculation Date” |
Section 1.1 |
|
|
“Canadian Legend” |
Section 2.6(f)(4) |
|
|
“Change of Control Offer” |
Section 4.11(a) |
“Change of Control Payment” |
Section 4.11(a) |
|
|
“Change of Control Payment Date” |
Section 4.11(a) |
|
|
“Code” |
Section 1.1 |
|
|
“Collateral Asset Sale” |
Section 4.7(d) |
|
|
“Collateral Asset Sale Offer” |
Section 4.7(b)(5) |
|
|
“Collateral Retained Declined Proceeds” |
Section 4.7(i) |
|
|
“covenant defeasance option” |
Section 8.1(b) |
|
|
“Covenant Suspension Event” |
Section 4.20(a) |
|
|
“Defaulted Interest” |
Section 2.11 |
|
|
“EDGAR” |
Section 4.2(c) |
|
|
“Excess Proceeds” |
Section 4.7(c) |
|
|
“Financial Reports” |
Section 4.2 |
|
|
“Foreign Guarantors” |
Section 12.7(c) |
|
|
“IFRS” |
Section 1.1 |
|
|
“incur” |
Section 4.3(a) |
|
|
“Initial Notes” |
Preamble |
|
|
“Judgment Currency” |
Section 12.7(a) |
|
|
“legal defeasance option” |
Section 8.1(b) |
|
|
“Legal Holiday” |
Section 12.6 |
|
|
“Obligations” |
Section 10.1 |
|
|
“Paying Agent” |
Section 2.3 |
|
|
“Payment Default” |
Section 6.1(4) |
|
|
“Payor” |
Section 4.21(a) |
|
|
“Permitted Debt” |
Section 4.3(b) |
|
|
“Registrar” |
Section 2.3 |
“Reinstatement Date” |
Section 4.20(c) |
|
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“Related Person” |
Section 11.8(b) |
|
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“Relevant Taxing Jurisdiction” |
Section 4.21(a) |
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|
“Restricted Payment” |
Section 4.4(a)(4) |
|
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“Retained Declined Proceeds” |
Section 4.7(i) |
|
|
“Second Commitment” |
Section 4.7(b)(5) |
|
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“SEDAR+” |
Section 4.2(c) |
|
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“Suspended Covenants” |
Section 4.20(a) |
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“Suspension Period” |
Section 4.20(a) |
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“Tax Group” |
Section 4.4(c)(18)(H) |
Section 1.3. Rules of
Construction.
Unless the context otherwise requires:
(1) a
term has the meaning assigned to it;
(2) any
accounting term used in this Indenture, unless otherwise defined therein, has the meaning assigned to it under GAAP applied consistently
throughout the relevant period and relevant prior periods. If there occurs a change in generally accepted accounting principles, and such
change would require disclosure under GAAP in the financial statements of the Issuer and would cause a change in the method of calculation
of financial covenants, standards or terms as determined in good faith by the Issuer (an “Accounting Change”), then the Issuer
may elect, as evidenced by a written notice of the Issuer to the Trustee, that such financial covenants, standards or terms shall be calculated
as if such Accounting Change had not occurred. Any such election with respect to such Accounting Change may not thereafter be changed;
(3) “or”
is not exclusive;
(4) “including”
means including without limitation;
(5) words
in the singular include the plural and words in the plural include the singular;
(6) unless
otherwise indicated, all references to “Articles” or “Sections” are to Articles or Sections, as the case may be,
of this Indenture;
(7) references
to sections of or rules or regulations under any legislation (including the 1933 Act, the 1934 Act or Canadian Securities Legislation)
shall be deemed to include any substitute, replacement or successor section, rule, regulation or instrument, as applicable, issued, adopted
or promulgated by the SEC, the applicable Canadian securities commission or securities regulatory authority or any other applicable governmental
authority from time to time;
(8) “herein,”
“hereof” and other words of similar import refer to this Indenture as a whole (as amended or supplemented from time to time)
and not to any particular Article, Section or other subdivision; and
(9) all
references to “US$” are to U.S. dollars and all references to “$” are to Canadian dollars. Notwithstanding the
foregoing, the Notes shall at all times be denominated, and principal and interest shall be payable only in U.S. dollars.
Article II
THE NOTES
Section 2.1. Form and
Dating.
(a) General.
The Notes and the Trustee’s certificate of authentication shall be substantially in the form of Exhibit A hereto. The
Notes may have notations, legends or endorsements required by law, stock exchange rule or usage (but which shall not affect the rights,
duties, obligations or immunities of the Trustee without the prior written consent of the Trustee). Each Note shall be dated the date
of its authentication. The Notes shall be in minimum denominations of US$2,000 and integral multiples of US$1,000 in excess thereof. The
terms and provisions contained in the Notes shall constitute, and are hereby expressly made, a part of this Indenture and the Issuer,
the Guarantors and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to
be bound thereby. However, to the extent any provision of any Note conflicts with the express provisions of this Indenture, the provisions
of this Indenture (to the extent permitted by law) shall govern and be controlling.
(b) Global
Notes. The Notes issued in global form shall be substantially in the form of Exhibit A attached hereto (including the
Global Note Legend thereon and the “Schedule of Exchanges of Interests in the Global Note” attached thereto). The Notes issued
in definitive form shall be substantially in the form of Exhibit A attached hereto (but without the Global Note Legend thereon
and without the “Schedule of Exchanges of Interests in the Global Note” attached thereto). Each Global Note shall represent
the amount of outstanding Notes specified therein, and each Global Note shall provide that it shall represent the aggregate principal
amount of outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes represented
thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions. Any endorsement of a Global
Note to reflect the amount of any increase or decrease in the aggregate principal amount of outstanding Notes represented thereby shall
be made by the Trustee or the Notes Custodian of the Issuer, at the direction of the Trustee, in accordance with the written instructions
given by the Holder thereof as required by Section 2.6 hereof.
(c) Regulation
S Global Notes. Any Notes offered and sold in reliance on Regulation S shall be issued initially in the form of a Regulation S Global
Note, which shall be deposited on behalf of the purchasers of the Notes represented thereby with the Notes Custodian, and registered in
the name of the Depositary or the nominee of the Depositary for the accounts of designated agents holding on behalf of Euroclear or Clearstream,
duly executed by the Issuer and authenticated by the Trustee as hereinafter provided. Prior to the expiration of the Restricted Period,
any resale or transfer of beneficial interests in a Regulation S Global Note to U.S. Persons shall not be permitted unless such resale
or transfer is made pursuant to Rule 144A or Regulation S.
(d) 144A
Global Notes. Any Notes offered and sold in reliance on Rule 144A shall be issued initially in the form of a 144A Global Note,
which shall be deposited on behalf of the purchasers of the Notes represented thereby with the Notes Custodian, and registered in the
name of the Depositary or the nominee of the Depositary, duly executed by the Issuer and authenticated by the Trustee as hereinafter provided.
(e) Definitive
Notes. Notwithstanding any other provision of this Section 2.1, any issuance of Definitive Notes shall be at the Issuer’s
discretion, except in the circumstances set forth in Section 2.6(a) hereof.
Section 2.2. Execution
and Authentication.
An Officer shall sign the Notes for the Issuer
by manual, facsimile or electronically transmitted signature.
If an Officer whose signature is on a Note no longer
holds that office at the time the Trustee authenticates the Note, the Note shall be valid nevertheless.
A Note shall not be valid until an authorized signatory
of the Trustee manually or electronically authenticates the Note. The signature of the Trustee on a Note shall be conclusive evidence
that such Note has been duly and validly authenticated and issued under this Indenture.
The Trustee shall authenticate and deliver: (i) Initial
Notes for original issue in an aggregate principal amount of US$1,000,000,000 on the Issue Date, and (ii) if and when issued, Additional
Notes (which may be issued in either a registered or a private offering under the 1933 Act), in each case upon an Issuer Order. Such Issuer
Order shall specify the amount of the Notes to be authenticated and the date on which the original issue of Notes is to be authenticated
and whether the Notes are to be in global or definitive form and whether they are to bear the Private Placement Legend or the Canadian
Legend. The Issuer may issue Additional Notes under this Indenture subsequent to the Issue Date, subject to Section 4.3 of
this Indenture. For the avoidance of any doubt, any Additional Notes that are issued hereunder, and in connection therewith the Issuer
delivered to the Trustee an Officer’s Certificate and Opinion of Counsel each stating that such issuance of Additional Notes is
authorized and permitted under this Indenture, shall be valid for all purposes and constitute Additional Notes hereunder, even if subsequently
it is determined that such issuance was not in compliance with the covenants of this Indenture.
The Trustee may appoint an agent (the “Authenticating
Agent”) reasonably acceptable to the Issuer to authenticate the Notes. Unless limited by the terms of such appointment, any
such Authenticating Agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by
the Trustee includes authentication by such agent.
Section 2.3. Registrar
and Paying Agent.
The Issuer shall at all times maintain in the continental
U.S. an office or agency where Notes may be presented for registration of transfer or for exchange (the “Registrar”),
and an office or agency where Notes may be presented for payment (the “Paying Agent”). The Registrar shall keep a register
of the Notes and of their transfer and exchange. The Issuer may have one or more co-registrars and one or more additional paying agents.
The term “Registrar” includes any co-registrar, and the term “Paying Agent” includes any such additional
paying agent. The Issuer will give prompt written notice to the Trustee of any such co-registrar or additional paying agents and of any
change in the name or address of any such Registrar or Paying Agent.
The Issuer or any of its Subsidiaries may act as
Paying Agent, subject to the provisions of this Section 2.3 and Section 4.14. Any Paying Agent or Registrar may
resign as such upon 30 days’ prior written notice to the Issuer and the Trustee; upon resignation of any Paying Agent or Registrar,
the Issuer shall appoint a successor Paying Agent or Registrar, as the case may be, complying with the requirements of this Section 2.3,
no later than 30 days thereafter and shall provide notice to the Trustee of such successor Paying Agent or Registrar.
If at any time there shall be Notes outstanding
that are not Global Notes and there shall be no Paying Agent with an office or agency in the City of New York, State of New York (or as
such office may be moved from time to time to any other location within the contiguous U.S.), where the Notes may be presented or surrendered
for payment, the Issuer shall forthwith designate such a Paying Agent in order that such Notes shall at all times be payable in the City
of New York, the State of New York (or as such office may be moved from time to time to any other location within the contiguous U.S.).
The Issuer initially appoints Computershare Trust
Company, N.A., as Registrar and Paying Agent for the Notes. The immunities, protections and exculpations available to the Trustee under
this Indenture shall also be available to each Agent, and the Issuer’s obligations under Section 7.6 to compensate and
indemnify the Trustee shall extend likewise to each Agent.
Section 2.4. Paying
Agent to Hold Money in Trust.
By at least 11:00 a.m. (New York City time)
on the date on which any principal, premium, if any, or interest on any Note is due and payable, the Issuer shall deposit with the Paying
Agent in immediately available funds a sum sufficient to pay such principal, premium, if any, and interest when due. The Issuer shall
require each Paying Agent (other than the Trustee) to agree in writing that such Paying Agent shall hold in trust for the benefit of Holders
or the Trustee all money held by such Paying Agent for the payment of principal, premium, if any, and interest (if any) on the Notes and
shall notify the Trustee of any default by the Issuer in making any such payment. If the Issuer or a Subsidiary acts as Paying Agent,
it shall segregate the money held by it as Paying Agent and hold it as a separate trust fund. The Issuer at any time may require a Paying
Agent (other than the Trustee) to pay all money held by it to the Trustee and to account for any funds disbursed by such Paying Agent.
Upon complying with this Section 2.4, the Paying Agent (if other than the Issuer or a Subsidiary) shall have no further liability
for the money delivered to the Trustee.
Section 2.5. Holder
Lists.
The Trustee shall preserve in as current a form
as is reasonably practicable the most recent list available to it of the names and addresses of Holders. If the Trustee is not the Registrar,
the Issuer shall furnish to the Trustee, in writing at least seven (7) Business Days before each Interest Payment Date and at such
other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the
names and addresses of Holders.
Section 2.6. Transfer
and Exchange.
(a) Transfer
and Exchange of Global Notes. Except as set forth herein, a Global Note may not be transferred as a whole except by the Depositary
to a nominee of the Depositary, by a nominee of the Depositary to the Depositary or to another nominee of the Depositary, or by the Depositary
or any such nominee to a successor Depositary or a nominee of such successor Depositary. Owners of beneficial interests in Global Notes
shall not be entitled to receive Definitive Notes unless:
(1) the
Depositary (A) notifies the Issuer that it is unwilling or unable to continue to act as Depositary or (B) that it is no longer
a clearing agency registered under the 1934 Act and, in either case, a successor Depositary is not appointed by the Issuer within 90 days
after the date of such notice from the Depositary;
(2) the
Issuer, at its option, notifies the Trustee in writing that it elects to cause the issuance of the certificated Notes and any Participant
requests a certificated Note; provided that in no event shall the Regulation S Global Note be exchanged by the Issuer for Definitive
Notes prior to (a) the expiration of the Restricted Period and (b) the receipt of any certificates required under the provisions
of Regulation S;
(3) there
has occurred and is continuing a Default or Event of Default with respect to the Notes and the Depositary notifies the Issuer and the
Trustee of its decision to exchange the Global Notes for Definitive Notes; or
(4) written
notice is given to the Trustee by or on behalf of the Depositary in accordance with this Indenture.
Upon the occurrence of the preceding events in
clauses (1), (2), (3) or (4) above, Definitive Notes shall be issued in such names and in any approved denominations as the
Depositary shall instruct the Issuer, the Trustee and the Registrar. Global Notes also may be exchanged or replaced, in whole or in part,
as provided in Section 2.7 hereof. Every Note authenticated and delivered in exchange for, or in lieu of, a Global Note or
any portion thereof, pursuant to this Section 2.6 or Section 2.7 hereof, shall be authenticated and delivered
in the form of, and shall be, a Global Note. A Global Note may not be exchanged for another Note other than as provided in this Section 2.6(a);
however, beneficial interests in a Global Note may be transferred and exchanged as provided in Section 2.6(b) or (c).
(b) Transfer
and Exchange of Beneficial Interests in the Global Notes. The transfer and exchange of beneficial interests in the Global Notes shall
be effected through the Depositary, in accordance with the provisions of this Indenture and the Applicable Procedures. Beneficial interests
in the Restricted Global Notes shall be subject to restrictions on transfer comparable to those set forth herein, including those set
forth in the Private Placement Legend and the Canadian Legend (if applicable), to the extent required by the 1933 Act and applicable Canadian
Securities Legislation, and the U.S. transfers of beneficial interests in the Global Notes also shall require compliance with either subparagraph
(1) or (2) below, as applicable, as well as one or more of the other following provisions of this Section 2.6, as
applicable:
(1) Transfer
of Beneficial Interests in the Same Global Note. Beneficial interests in any Restricted Global Note may be transferred to Persons
who take delivery thereof in the form of a beneficial interest in the same Restricted Global Note in accordance with the transfer restrictions
set forth in the Private Placement Legend; provided, however, that prior to the expiration of the Restricted Period, (A) transfers
of beneficial interests in the Regulation S Global Note may not be to a U.S. Person or for the account or benefit of a U.S. Person (other
than an Initial Purchaser) and (B) such beneficial interests may be held only through Euroclear or Clearstream (as Indirect Participants
in the Depositary). Beneficial interests in such Unrestricted Global Note may be transferred to Persons who take delivery thereof in the
form of a beneficial interest in an Unrestricted Global Note. No written orders or instructions shall be required to be delivered to the
Registrar to effect the transfers described in the preceding sentence of this Section 2.6(b)(1).
(2) All
Other Transfers and Exchanges of Beneficial Interests in Global Notes. In connection with all transfers and exchanges of beneficial
interests that are not subject to Section 2.6(b)(1) above, the transferor of such beneficial interest must deliver to
the Registrar either:
(A) (i) a
written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing
the Depositary to credit or cause to be credited a beneficial interest in another Global Note in an amount equal to the beneficial interest
to be transferred or exchanged; and
(ii) instructions
given in accordance with the Applicable Procedures containing information regarding the Participant account to be credited with such increase;
or
(B) (i) a
written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing
the Depositary to cause to be issued a Definitive Note in an amount equal to the beneficial interest to be transferred or exchanged; and
(ii) instructions
given by the Depositary to the Registrar containing information regarding the Person in whose name such Definitive Note shall be registered
to effect the transfer or exchange referred to in Section 2.6(b) above; provided that in no event shall Definitive
Notes be issued upon the transfer or exchange of beneficial interests in the Regulation S Global Note prior to (a) the expiration
of the Restricted Period and (b) the receipt of any certificates required under the provisions of Regulation S.
Upon satisfaction of all of the requirements for
transfer or exchange of beneficial interests in Global Notes contained in this Indenture, the Notes or otherwise applicable under the
1933 Act, the principal amount of the relevant Global Note(s) shall be adjusted pursuant to Section 2.6(g) hereof.
(3) Transfer
of Beneficial Interests to Another Restricted Global Note. A beneficial interest in any Restricted Global Note may be transferred
to a Person who takes delivery thereof in the form of a beneficial interest in another Restricted Global Note if the transfer complies
with the requirements of Section 2.6(b)(2) above and the Registrar receives the following:
(A) if
the transferee will take delivery in the form of a beneficial interest in the 144A Global Note, then the transferor must deliver a certificate
in the form of Exhibit B hereto, including the certifications in item (1) thereof; and
(B) if
the transferee will take delivery in the form of a beneficial interest in the Regulation S Global Note, then the transferor must deliver
a certificate in the form of Exhibit B hereto, including the certifications in item (2) thereof, and if such transfer
occurs prior to the expiration of the Restricted Period, then the transferee must hold such beneficial interest through either Euroclear
or Clearstream (as Indirect Participants in the Depositary).
(4) Transfer
and Exchange of Beneficial Interests in a Restricted Global Note for Beneficial Interests in the Unrestricted Global Note. A beneficial
interest in any Restricted Global Note may be exchanged by any holder thereof for a beneficial interest in an Unrestricted Global Note
or transferred to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note if the exchange
or transfer complies with the requirements of Section 2.6(b)(2) above and the Registrar receives the following:
(i) if
the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a beneficial interest
in an Unrestricted Global Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications
in item (1)(a) thereof; or
(ii) if
the holder of such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a Person who shall
take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note, a certificate from such holder in the form
of Exhibit B hereto, including the certifications in item (4) thereof;
and, in each such case, if the Registrar or the Issuer so requests
or if the Applicable Procedures so require, an Opinion of Counsel to the effect that such exchange or transfer is in compliance with the
1933 Act and state “blue sky” laws and that the restrictions on transfer contained herein and in the Private Placement Legend
are no longer required in order to maintain compliance with the 1933 Act.
If any such transfer is effected at a time when
an Unrestricted Global Note has not yet been issued, the Issuer shall issue and, upon receipt of an Issuer Order in accordance with Section 2.2
hereof, the Trustee shall authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the aggregate principal
amount of beneficial interests transferred.
Beneficial interests in an Unrestricted Global
Note cannot be exchanged for, or transferred to Persons who take delivery thereof in the form of, a beneficial interest in a Restricted
Global Note.
(c) Transfer
or Exchange of Beneficial Interests for Definitive Notes.
(1) Beneficial
Interests in Restricted Global Notes to Restricted Definitive Notes. If, in accordance with Section 2.6(a), any holder
of a beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Restricted Definitive Note or
to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Restricted Definitive Note, then, upon receipt
by the Registrar of the following documentation:
(A) if
the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Restricted Definitive
Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (2)(a) thereof;
(B) if
such beneficial interest is being transferred to a QIB in accordance with Rule 144A, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (1) thereof; or
(C) if
such beneficial interest is being transferred to a non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule 904,
a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (2) thereof,
the Registrar shall cause the aggregate principal amount of the applicable
Global Note to be reduced accordingly pursuant to Section 2.6(g) hereof, and the Issuer shall execute and the Trustee,
upon receipt of an Issuer Order, shall authenticate and deliver to the Person designated in the instructions a Definitive Note in the
appropriate principal amount. Any Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to
this Section 2.6(c) shall be registered in such name or names and in such authorized denomination or denominations as
the holder of such beneficial interest shall instruct the Registrar through instructions from the Depositary and the Participant or Indirect
Participant. The Trustee shall deliver such Definitive Notes to the Persons in whose names such Notes are so registered. Any Definitive
Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this Section 2.6(c)(1) shall
bear the Private Placement Legend and shall be subject to all restrictions on transfer contained therein. Notwithstanding Sections
2.6(c)(1)(A) and (C) hereof, a beneficial interest in the Regulation S Global Note may not be exchanged for a Definitive
Note or transferred to a Person who takes delivery thereof in the form of a Definitive Note prior to (a) the expiration of the Restricted
Period and (b) the receipt of any certificates required under the provisions of Regulation S, except in the case of a transfer pursuant
to an exemption from the registration requirements of the 1933 Act other than Rule 903 or Rule 904.
(2) Beneficial
Interests in Restricted Global Notes to Unrestricted Definitive Notes. A holder of a beneficial interest in a Restricted Global Note
may exchange such beneficial interest for an Unrestricted Definitive Note or may transfer such beneficial interest to a Person who takes
delivery thereof in the form of an Unrestricted Definitive Note, in each case only pursuant to Section 2.6(a) and only
if the Registrar receives the following:
(i) if
the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for an Unrestricted Definitive
Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (1)(b) thereof;
or
(ii) if
the holder of such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a Person who shall
take delivery thereof in the form of an Unrestricted Definitive Note, a certificate from such holder in the form of Exhibit B
hereto, including the certifications in item (4) thereof;
and, in each such case, if the Registrar or the Issuer so requests
or if the Applicable Procedures so require, an Opinion of Counsel to the effect that such exchange or transfer is in compliance with the
1933 Act and state “blue sky” laws and that the restrictions on transfer contained herein and in the Private Placement Legend
are no longer required in order to maintain compliance with the 1933 Act.
(3) Beneficial
Interests in Unrestricted Global Notes to Unrestricted Definitive Notes. If any holder of a beneficial interest in an Unrestricted
Global Note proposes to exchange such beneficial interest for a Definitive Note or to transfer such beneficial interest to a Person who
takes delivery thereof in the form of a Definitive Note, then, upon satisfaction of the conditions set forth in Section 2.6(b)(2) hereof,
the Registrar shall cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to Section 2.6(g) hereof,
and the Issuer shall execute and the Trustee, upon receipt of an Issuer Order, shall authenticate and deliver to the Person designated
in the instructions a Definitive Note in the appropriate principal amount. Any Definitive Note issued in exchange for a beneficial interest
pursuant to this Section 2.6(c)(3) shall be registered in such name or names and in such authorized denomination or denominations
as the holder of such beneficial interest shall instruct the Registrar through instructions from the Depositary and the Participant or
Indirect Participant. The Trustee shall deliver such Definitive Notes to the Persons in whose names such Notes are so registered. Any
Definitive Note issued in exchange for a beneficial interest pursuant to this Section 2.6(c)(3) shall not bear the Private
Placement Legend.
(d) Transfer
and Exchange of Definitive Notes for Beneficial Interests.
(1) Restricted
Definitive Notes to Beneficial Interests in Restricted Global Notes. If any Holder of a Restricted Definitive Note proposes to exchange
such Note for a beneficial interest in a Restricted Global Note or to transfer such Restricted Definitive Note to a Person who takes delivery
thereof in the form of a beneficial interest in a Restricted Global Note, then, upon receipt by the Registrar of the following documentation:
(A) if
the Holder of such Restricted Definitive Note proposes to exchange such Note for a beneficial interest in a Restricted Global Note, a
certificate from such Holder in the form of Exhibit C hereto, including the certifications in item (2)(b) thereof;
(B) if
such Restricted Definitive Note is being transferred to a QIB in accordance with Rule 144A, a certificate to the effect set forth
in Exhibit B hereto, including the certifications in item (1) thereof; or
(C) if
such Restricted Definitive Note is being transferred to a non-U.S. Person in an offshore transaction in accordance with Rule 903
or Rule 904, a certificate to the effect set forth in Exhibit C hereto, including the certifications in item (2) thereof,
the Trustee shall cancel the Restricted Definitive Note, the Registrar
shall increase or cause to be increased the aggregate principal amount of, in the case of clause (d)(1)(A) above, the appropriate
Restricted Global Note, in the case of clause (d)(1)(B) above, the 144A Global Note, and in the case of clause (d)(1)(C) above,
the Regulation S Global Note. Notwithstanding the foregoing, if there are no Global Notes outstanding prior to any such transfer, Definitive
Notes may be transferred for beneficial interests in a Global Note only if the Issuer so agrees and delivers an Issuer Order to the Trustee.
(2) Restricted
Definitive Notes to Beneficial Interests in Unrestricted Global Notes. A Holder of a Restricted Definitive Note may exchange such
Note for a beneficial interest in an Unrestricted Global Note or transfer such Restricted Definitive Note to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global Note only if the Registrar receives the following:
(i) if
the Holder of such Definitive Notes proposes to exchange such Notes for a beneficial interest in the Unrestricted Global Note, a certificate
from such Holder in the form of Exhibit C hereto, including the certifications in item (1)(c) thereof; or
(ii) if
the Holder of such Definitive Notes proposes to transfer such Notes to a Person who shall take delivery thereof in the form of a beneficial
interest in the Unrestricted Global Note, a certificate from such Holder in the form of Exhibit B hereto, including the certifications
in item (4) thereof;
and, in each such case, if the Registrar or the Issuer so requests
or if the Applicable Procedures so require, an Opinion of Counsel to the effect that such exchange or transfer is in compliance with the
1933 Act and state “blue sky” laws and that the restrictions on transfer contained herein and in the Private Placement Legend
are no longer required in order to maintain compliance with the 1933 Act.
Upon satisfaction of the conditions of any of the
subparagraphs in this Section 2.6(d)(2), the Trustee shall cancel the Definitive Notes and the Registrar shall increase or
cause to be increased the aggregate principal amount of the Unrestricted Global Note. Notwithstanding the foregoing, if there are no Global
Notes outstanding prior to any such transfer, Definitive Notes may be transferred for beneficial interests in a Global Note only if the
Issuer so agrees and delivers an Issuer Order to the Trustee.
(3) Unrestricted
Definitive Notes to Beneficial Interests in Unrestricted Global Notes. A Holder of an Unrestricted Definitive Note may exchange such
Note for a beneficial interest in an Unrestricted Global Note or transfer such Definitive Note to a Person who takes delivery thereof
in the form of a beneficial interest in an Unrestricted Global Note at any time. Upon receipt of a request for such an exchange or transfer,
the Trustee shall cancel the applicable Unrestricted Definitive Note and the Registrar shall increase or cause to be increased the aggregate
principal amount of one of the Unrestricted Global Notes.
If any such exchange or transfer from a Definitive
Note to a beneficial interest is effected pursuant to subparagraph (2)(ii) or (3) above at a time when an Unrestricted Global
Note has not yet been issued, the Issuer shall issue and, upon receipt of an Issuer Order in accordance with Section 2.2 hereof,
the Trustee shall authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the principal amount of
Definitive Notes so transferred.
(e) Transfer
and Exchange of Definitive Notes for Definitive Notes. Upon request by a Holder of Definitive Notes and such Holder’s compliance
with the provisions of this Section 2.6(e), the Registrar shall register the transfer or exchange of Definitive Notes. Prior
to such registration of transfer or exchange, the requesting Holder shall present or surrender to the Registrar the Definitive Notes duly
endorsed or accompanied by a written instruction of transfer in form satisfactory to the Registrar duly executed by such Holder or by
its attorney, duly authorized in writing. In addition, the requesting Holder shall provide any additional certifications, documents and
information, as applicable, required pursuant to the following provisions of this Section 2.6(e).
(1) Restricted
Definitive Notes to Restricted Definitive Notes. Any Restricted Definitive Note may be transferred to and registered in the name of
Persons who take delivery thereof in the form of a Restricted Definitive Note if the Registrar receives the following:
(A) if
the transfer will be made pursuant to Rule 144A, then the transferor must deliver a certificate in the form of Exhibit C
hereto, including the certifications in item (1) thereof;
(B) if
the transfer will be made pursuant to Rule 903 or Rule 904, then the transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (2) thereof; and
(C) if
the transfer will be made pursuant to any other exemption must deliver a certificate in the form of Exhibit B hereto, including
the certifications required by item (3) thereof.
(2) Restricted
Definitive Notes to Unrestricted Definitive Notes. Any Restricted Definitive Note may be exchanged by the Holder thereof for an Unrestricted
Definitive Note or transferred to a Person or Persons who take delivery thereof in the form of an Unrestricted Definitive Note if the
Registrar receives the following:
(i) if
the Holder of such Restricted Definitive Notes proposes to exchange such Notes for an Unrestricted Definitive Note, a certificate from
such Holder in the form of Exhibit C hereto, including the certifications in item (1)(d) thereof; or
(ii) if
the Holder of such Restricted Definitive Note proposes to transfer such Notes to a Person who shall take delivery thereof in the form
of an Unrestricted Definitive Note, a certificate from such Holder in the form of Exhibit B hereto, including the certifications
in item (4) thereof;
and, in each such case, if the Registrar or the Issuer so requests,
an Opinion of Counsel to the effect that such exchange or transfer is in compliance with the 1933 Act and state “blue sky”
laws and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain
compliance with the 1933 Act.
(3) Unrestricted
Definitive Notes to Unrestricted Definitive Notes. A Holder of Unrestricted Definitive Notes may transfer such Notes to a Person who
takes delivery thereof in the form of an Unrestricted Definitive Note. Upon receipt of a request to register such a transfer, the Registrar
shall register the Unrestricted Definitive Note pursuant to the instructions from the Holder thereof.
(f) Legends.
The following legends shall appear on the face of all Global Notes and Definitive Notes issued under this Indenture unless specifically
stated otherwise in the applicable provisions of this Indenture.
(1) Private
Placement Legend.
(A) Except
as permitted by subparagraph (B) below or as otherwise agreed between the Issuer and the Holder, each Global Note and each Definitive
Note (and all Notes issued in exchange therefor or substitution thereof) shall bear a legend, until the Resale Restriction Termination
Date, in substantially the following form:
“THIS NOTE HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “1933 ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION.
NEITHER THIS NOTE 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 NOTE, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED
NOTES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH NOTE, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT
IS [IN THE CASE OF RULE 144A NOTES: ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF, THE ORIGINAL ISSUE DATE OF THE ISSUANCE
OF ANY ADDITIONAL NOTES AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR
OF SUCH NOTE),] [IN THE CASE OF REGULATION S NOTES: 40 DAYS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF, THE ORIGINAL ISSUE DATE
OF THE ISSUANCE OF ANY ADDITIONAL NOTES AND THE DATE ON WHICH THIS NOTE (OR ANY PREDECESSOR OF SUCH NOTE) 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 ISSUER OR ANY SUBSIDIARY
THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE 1933 ACT, (C) FOR SO LONG AS THE
NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE 1933 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 1933 ACT, (E) TO AN INSTITUTIONAL
“ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE 1933 ACT THAT IS NOT A QUALIFIED
INSTITUTIONAL BUYER AND THAT IS PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER INSTITUTIONAL ACCREDITED INVESTOR, IN
EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF NOTES OF US$250,000 OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE 1933 ACT, SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT
TO CLAUSES (D), (E) OR (F) 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.
[IN THE CASE OF REGULATION S NOTES: 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 NOTE IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE 1933 ACT.]”
(B) Notwithstanding
the foregoing, any Global Note or Definitive Note issued pursuant to Sections 2.6(b)(4), (c)(2), (c)(3), (d)(2), (d)(3), (e)(2) or
(e)(3) (and all Notes issued in exchange therefor or substitution thereof) shall not bear the Private Placement Legend. The Issuer,
acting in its discretion, may remove the Private Placement Legend from any Restricted Note at any time on or after the Resale Restriction
Termination Date applicable to such Restricted Note. Without limiting the generality of the preceding sentence, the Issuer may effect
such removal by issuing and delivering, in exchange for such Restricted Note, an Unrestricted Note, registered to the same Holder and
in an equal principal amount, and, notwithstanding any other provision of this Section 2.6, upon receipt of an Issuer Order given
at least three (3) Business Days in advance of the proposed date of exchange specified therein (which shall be no earlier than the
Resale Restriction Termination Date), the Trustee shall authenticate and deliver such Unrestricted Note as directed in such Issuer Order.
Notwithstanding the foregoing, the Trustee shall not be obligated to authenticate and deliver any Note that it reasonably believes, on
advice of counsel, does not comply with Applicable Procedures or applicable law.
(2) Global
Notes Legend. Each Global Note shall bear a legend in substantially the following form:
“THIS GLOBAL NOTE IS HELD BY THE
DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF,
AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE REGISTRAR MAY MAKE SUCH NOTATIONS HEREON AS
MAY BE REQUIRED PURSUANT TO SECTION 2.6 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT
NOT IN PART PURSUANT TO SECTION 2.6(a) OF THE INDENTURE AND (III) THIS GLOBAL NOTE MAY BE DELIVERED TO
THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.10 OF THE INDENTURE.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE
OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF
THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH
NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”) TO THE ISSUER OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.”
(3) ERISA
Legend. Each Global Note and each Definitive Note (and all Notes issued in exchange therefor or substitution thereof) shall bear a
legend in substantially the following form:
“BY ITS ACQUISITION OF THIS NOTE,
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 NOTE 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” (WITHIN THE MEANING OF
29 C.F.R. 2510.3-101, AS MODIFIED BY SECTION 3(42) OF ERISA OR ANY APPLICABLE SIMILAR LAWS) OF ANY SUCH PLAN, ACCOUNT OR ARRANGEMENT,
OR (2) THE ACQUISITION AND HOLDING OF THIS NOTE 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 LAWS.
FURTHER, IF THE HOLDER IS A PLAN SUBJECT
TO TITLE I OF ERISA OR SECTION 4975 OF THE CODE (AN “ERISA PLAN”), SUCH HOLDER WILL BE DEEMED TO HAVE REPRESENTED AND
WARRANTED THAT (1) NONE OF THE ISSUER, GUARANTORS, THE INITIAL PURCHASERS AND ANY OF THEIR RESPECTIVE AFFILIATES (COLLECTIVELY, THE
“TRANSACTION PARTIES”) HAS ACTED AS THE ERISA PLAN’S FIDUCIARY (WITHIN THE MEANING OF ERISA OR THE CODE), OR HAS BEEN
RELIED UPON FOR ANY ADVICE, WITH RESPECT TO THE HOLDER’S DECISION TO ACQUIRE AND HOLD THE NOTES, AND NONE OF THE TRANSACTION PARTIES
SHALL AT ANY TIME BE RELIED UPON AS THE ERISA PLAN’S FIDUCIARY WITH RESPECT TO ANY DECISION TO ACQUIRE, CONTINUE TO HOLD OR TRANSFER
THE NOTES, AND (2) THE DECISION TO PURCHASE THE NOTES HAS BEEN MADE BY A DULY AUTHORIZED FIDUCIARY OF THE ERISA PLAN THAT (I) IS
INDEPENDENT (AS THAT TERM IS USED IN 29 C.F.R. 2510.3-21(C)(1)) OF THE TRANSACTION PARTIES AND THERE IS NO FINANCIAL INTEREST, OWNERSHIP
INTEREST, OR OTHER RELATIONSHIP, AGREEMENT OR UNDERSTANDING OR OTHERWISE THAT WOULD LIMIT ITS ABILITY TO CARRY OUT ITS FIDUCIARY RESPONSIBILITY
TO THE ERISA PLAN; (II) IS A BANK, AN INSURANCE CARRIER, A REGISTERED INVESTMENT ADVISER, A REGISTERED BROKER-DEALER, OR AN INDEPENDENT
FIDUCIARY THAT HOLDS, OR HAS UNDER MANAGEMENT OR CONTROL, TOTAL ASSETS OF AT LEAST $50 MILLION (IN EACH CASE, AS SPECIFIED IN 29 C.F.R.
2510.3-21(C)(1)(I)(A)-(E)); (III) IS CAPABLE OF EVALUATING INVESTMENT RISKS INDEPENDENTLY, BOTH IN GENERAL AND WITH REGARD TO PARTICULAR
TRANSACTIONS AND INVESTMENT STRATEGIES (INCLUDING, WITHOUT LIMITATION, WITH RESPECT TO THE DECISION TO INVEST IN THE NOTES); (IV) HAS
BEEN FAIRLY INFORMED THAT THE TRANSACTION PARTIES HAVE NOT AND WILL NOT UNDERTAKE TO PROVIDE IMPARTIAL INVESTMENT ADVICE, OR TO GIVE ADVICE
IN A FIDUCIARY CAPACITY, IN CONNECTION WITH THE PURCHASE AND HOLDING OF THE NOTES; (V) HAS BEEN FAIRLY INFORMED THAT THE TRANSACTION
PARTIES HAVE FINANCIAL INTERESTS IN THE ERISA PLAN’S PURCHASE AND HOLDING OF THE NOTES, WHICH INTERESTS MAY CONFLICT WITH THE
INTEREST OF THE ERISA PLAN; (VI) IS A FIDUCIARY UNDER ERISA OR THE CODE, OR BOTH, WITH RESPECT TO THE DECISION TO PURCHASE AND HOLD
THE NOTES AND IS RESPONSIBLE FOR EXERCISING (AND HAS EXERCISED) INDEPENDENT JUDGMENT IN EVALUATING WHETHER TO INVEST THE ASSETS OF SUCH
ERISA PLAN IN THE NOTES; AND (VII) IS NOT PAYING ANY TRANSACTION PARTY ANY FEE OR OTHER COMPENSATION DIRECTLY FOR THE PROVISION OF
INVESTMENT ADVICE (AS OPPOSED TO OTHER SERVICES) IN CONNECTION WITH THE ERISA PLAN’S PURCHASE AND HOLDING OF THE NOTES.”
(4) Canadian
Legend. Each Global Note and each Definitive Note (and all Notes issued in exchange therefor or substitution thereof) shall bear a
legend in substantially the following form:
(A) Each
Note (whether a Global Note or a Definitive Note), and all Notes issued in exchange therefor or substitution thereof, shall also bear
a legend (the “Canadian Legend”) in substantially the following form until such time as (i) a trade of such Note
in any province or territory Canada would not be a “distribution” or a “primary distribution to the public” (each
within the meaning of applicable Canadian Securities Legislation) and (ii) such Note is not otherwise required to carry the Canadian
Legend under applicable Canadian Securities Legislation:
“UNLESS PERMITTED UNDER CANADIAN
SECURITIES LEGISLATION, THE HOLDER OF THE SECURITY EVIDENCED HEREBY MUST NOT TRADE THE SECURITY BEFORE THE DATE THAT IS FOUR MONTHS AND
A DAY AFTER [INSERT DISTRIBUTION DATE].”
(B) The
distribution date to be inserted into the Canadian Legend pursuant to subparagraph (A) above shall be, in the case of the Initial
Notes, the Issue Date or, in the case of any Additional Notes, the “distribution date” (within the meaning of National Instrument
45-102 Resale of Securities) for such Additional Notes.
(g) Cancellation
and/or Adjustment of Global Notes. At such time as all beneficial interests in a particular Global Note have been exchanged for Definitive
Notes or a particular Global Note has been redeemed, repurchased or canceled in whole and not in part, each such Global Note shall be
returned to or retained and canceled by the Trustee in accordance with Section 2.10 hereof. At any time prior to such cancellation,
if any beneficial interest in a Global Note is exchanged for or transferred to a Person who will take delivery thereof in the form of
a beneficial interest in another Global Note or for Definitive Notes, the principal amount of Notes represented by such Global Note shall
be reduced accordingly and an endorsement shall be made on such Global Note by the Trustee or by the Notes Custodian at the direction
of the Trustee to reflect such reduction; and if the beneficial interest is being exchanged for or transferred to a Person who will take
delivery thereof in the form of a beneficial interest in another Global Note, such other Global Note shall be increased accordingly and
an endorsement shall be made on such Global Note by the Trustee or by the Notes Custodian at the direction of the Trustee to reflect such
increase.
(h) General
Provisions Relating to Transfers and Exchanges.
(1) To
permit registrations of transfers and exchanges, the Issuer shall execute and the Trustee shall authenticate Global Notes and Definitive
Notes upon receipt of an Issuer Order.
(2) No
service charge shall be made to a holder of a beneficial interest in a Global Note or to a Holder of a Definitive Note for any registration
of transfer or exchange, but the Issuer may require payment of a sum sufficient to cover any tax or similar charge or other fee required
by law and payable in connection therewith (other than any taxes or similar charge payable upon exchange or transfer pursuant to Sections
2.9, 3.6, 3.7, 4.7 and 4.11 hereof).
(3) All
Global Notes and Definitive Notes issued upon any registration of transfer or exchange of Global Notes or Definitive Notes shall be the
valid obligations of the Issuer, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Global Notes
or Definitive Notes surrendered upon such registration of transfer or exchange.
(4) None
of the Issuer, the Trustee or the Registrar shall be required (A) to issue, to register the transfer of or to exchange any Notes
during a period of 15 days before the day of any selection of Notes for redemption under Section 3.2 hereof and ending at
the close of business on the day of selection, (B) to register the transfer of or to exchange any Notes so selected for redemption
in whole or in part, except the unredeemed portion of any Note being redeemed in part or (C) to register the transfer of or to exchange
a Note between a record date and the next succeeding Interest Payment Date.
(5) Prior
to the due presentation for registration of transfer of any Note, the Issuer, each Guarantor, the Trustee, the Paying Agent or the Registrar
may deem and treat the Person in whose name a Note is registered as the absolute owner of such Note for the purpose of receiving payment
of principal, interest and premium (if any) on such Note and for all other purposes whatsoever, whether or not such Note is overdue, and
none of the Issuer, the Trustee, the Paying Agent or the Registrar shall be affected by notice to the contrary.
(6) The
Trustee shall authenticate Global Notes and Definitive Notes upon receipt of an Issuer Order and in accordance with the other provisions
of Section 2.2 hereof.
(7) All
certifications, certificates and Opinions of Counsel required to be submitted to the Registrar pursuant to this Section 2.6
to effect a registration of transfer or exchange may be submitted by facsimile.
(8) None
of the Trustee or any Agent shall have any obligation or duty to monitor, determine or inquire as to compliance with any restrictions
on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Note (including any
transfers between or among Depositary participants, members or beneficial owners in any Global Note) other than to require delivery of
such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the
terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
(9) None
of the Trustee or any Agent shall have any responsibility or obligation to any beneficial owner of a Global Note, a member of, or a participant
in the Depositary or other Person with respect to the accuracy of the records of the Depositary or its nominee or of any participant or
member thereof, with respect to any ownership interest in the Notes or with respect to the delivery to any participant, member, beneficial
owner or other Person (other than the Depositary) of any notice (including any notice of optional redemption) or the payment of any amount,
under or with respect to such Notes.
Section 2.7. Replacement
Notes.
If any mutilated Note is surrendered to the Trustee,
or the Issuer and the Trustee receive evidence to their satisfaction of the destruction, loss or theft of any Note, the Issuer shall issue
and the Trustee, upon receipt of an Issuer Order conforming to Section 2.2 hereof, will authenticate a replacement Note
of like tenor and principal amount if the Trustee’s and the Issuer’s reasonable requirements are met. If required by the Trustee
or the Issuer, an indemnity bond must be supplied by the Holder that is sufficient in the judgment of the Trustee and the Issuer to protect
the Issuer, the Trustee, any other Agent and any Authenticating Agent from any loss that any of them may suffer if a Note is replaced.
The Issuer may charge for its expenses (including any tax or charge that may be imposed in connection therewith and the fees and expenses
of the Trustee) in replacing a Note.
Every replacement Note is an additional obligation
of the Issuer and will be entitled to all of the benefits of this Indenture equally and proportionately with all other Notes duly issued
hereunder, provided it is held by a protected purchaser within the meaning of the Uniform Commercial Code.
Notwithstanding any other provision of this Section,
rather than authenticating and delivering a replacement Note for a mutilated, destroyed, loss or stolen Note which has been redeemed or
the principal of which has matured, the Issuer or the Paying Agent may make payment of the amount due on such security to the Holder upon
receipt of the above-described indemnity bond.
Section 2.8. Outstanding
Notes.
The Notes outstanding at any time are all the Notes
authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation, those reductions in the interest
in a Global Note effected by the Trustee in accordance with the provisions hereof, and those described in this Section as not outstanding.
Except as set forth in Section 12.5 hereof, a Note does not cease to be outstanding because the Issuer, a Guarantor or an
Affiliate of the Issuer or a Guarantor holds the Note.
If
a Note is replaced pursuant to Section 2.7 hereof, it ceases to be outstanding unless the Trustee receives proof
satisfactory to it that the replaced Note is held by a protected purchaser.
If the principal amount of any Note is considered
paid under Section 4.1 hereof, it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent (other than the Issuer, a Subsidiary
or an Affiliate of any thereof) holds, on a Redemption Date or maturity date, money sufficient to pay Notes payable on that date, then
on and after that date such Notes will be deemed to be no longer outstanding and will cease to accrue interest.
Section 2.9. Temporary
Notes.
Until Definitive Notes are ready for delivery,
the Issuer may prepare and the Trustee shall, upon receipt of an Issuer Order, authenticate temporary Notes. Temporary Notes shall be
substantially in the form of Definitive Notes but may have variations that the Issuer considers appropriate for temporary Notes and as
shall be reasonably acceptable to the Trustee. Without unreasonable delay, the Issuer shall prepare and the Trustee, upon receipt of an
Issuer Order, shall authenticate Definitive Notes in exchange for temporary Notes. Holders of temporary Notes shall in all respects be
entitled to the same benefits under this Indenture as a holder of Definitive Notes.
Section 2.10. Cancellation.
The Issuer at any time may deliver Notes to the
Trustee or any Registrar for cancellation. The Registrar and the Paying Agent shall forward to the Trustee any Notes surrendered to them
for registration of transfer, exchange or payment. The Trustee or the Registrar (and no one else) shall cancel and destroy (subject to
the Trustee’s procedures and the record retention requirements of the 1934 Act) all Notes surrendered for registration of transfer,
exchange, payment, replacement or cancellation and deliver a certificate of such destruction to the Issuer (provided that the Trustee
or such Registrar shall deliver a copy of such cancelled Note to the Issuer upon request prior to destruction). The Issuer may not issue
new Notes to replace Notes it has redeemed, paid or delivered to the Trustee or the Registrar for cancellation.
Section 2.11. Defaulted
Interest.
If the Issuer defaults in a payment of interest
(“Defaulted Interest”) on the Notes, the Issuer shall pay Defaulted Interest (as provided in Section 4.1)
in any lawful manner. The Issuer may pay the Defaulted Interest to the Persons who are Holders on a subsequent special record date. The
Issuer shall fix or cause to be fixed any such special record date and payment date, which special record date shall not be less than
10 days prior to the payment date for such Defaulted Interest and the Issuer, or at the Issuer’s request, the Trustee, shall promptly
cause to be mailed (or in the case of Global Notes send electronically in accordance with the procedures of the Depositary) to each Holder
a notice that states the special record date, the payment date and the amount of Defaulted Interest to be paid. The Issuer shall notify
the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Note and the date of the proposed payment, and
at the same time the Issuer shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect
of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment,
such money when so deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as provided in this
Section 2.11.
Section 2.12. CUSIP
Numbers.
The Issuer in issuing the Notes may use “CUSIP,”
“ISIN” or similar numbers (if then generally in use) and, if so, the Trustee shall use such numbers in notices of redemption
as a convenience to Holders; provided, however, that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Notes or as contained in any notice of a redemption and that reliance may be placed
only on the other identification numbers printed on the Notes, and any such redemption shall not be affected by any defect in or omission
of such numbers. The Issuer will promptly notify the Trustee in writing of any change in the “CUSIP”, “ISIN” or
similar numbers.
Section 2.13. Calculations.
The Issuer will be responsible for making all calculations
called for under this Indenture or the Notes. The Issuer will make all such calculations in good faith and, absent manifest error, its
calculations will be final and binding on Holders. The Issuer will provide a schedule of its calculations to the Trustee when reasonably
requested by the Trustee, and the Trustee is entitled to rely conclusively upon, and shall have no liability with respect to, the accuracy
of such calculations without independent verification. The Trustee will deliver a copy of any such schedule to any Holder upon the written
request of such Holder.
Article III
REDEMPTION
Section 3.1. Notices
to Trustee.
If the Issuer elects to redeem Notes pursuant to
Section 3.7, Section 3.8 or Section 4.11(i) hereof, it shall notify the Trustee in writing of
the Redemption Date and the principal amount of Notes to be redeemed.
The Issuer shall give each notice to the Trustee
and the Registrar provided for in this Section 3.1 at least five (5) Business Days before the date of giving notice of
the redemption pursuant to Section 3.3, unless the Trustee consents to a shorter period. Such notice shall be accompanied
by an Officer’s Certificate stating that such redemption will comply with the conditions therein.
Section 3.2. Selection
of Notes to Be Redeemed.
In the case of any partial redemption of the Notes
selection of the Notes for redemption will be made by the Trustee (i) if the Issuer gives written notice to the Trustee that the
Notes are listed in a national securities exchange, in compliance with the requirements of such exchange or (ii) if the Issuer does
not give written notice to the Trustee that the Notes are so listed, then on a pro rata basis (or, in the case of Notes in global form,
the Notes represented thereby will be selected in accordance with the Depositary’s prescribed method). The Trustee will make the
selection from outstanding Notes not previously called for redemption. The Trustee may select for redemption portions of the principal
of Notes that have denominations larger than US$1,000. Notes and portions of them the Trustee selects will be in minimum amounts of US$2,000
or a whole multiple of US$1,000 in excess thereof. The Issuer shall notify the Trustee and any Holder promptly of a change to the minimum
denomination of any Notes. Provisions of this Indenture that apply to Notes called for redemption also apply to portions of Notes called
for redemption. The Trustee shall notify the Issuer promptly of the Notes or portions of Notes to be redeemed. The Trustee may rely upon
information provided by the Registrar for purposes of this Section 3.2. The Trustee shall not be liable for the selection
made in accordance with this Section 3.2.
Section 3.3. Notice
of Redemption.
At least 10 days (or such shorter time period as
specified solely in respect of any Special Mandatory Redemption) but not more than 60 days before a date for redemption of Notes, the
Issuer shall mail a notice of redemption by first-class mail (or, in the case of Notes in global form, delivered electronically in accordance
with the Depositary’s procedures) to each Holder of Notes to be redeemed at such Holder’s registered address or, with respect
to Global Notes, otherwise give such notice in accordance with the Applicable Procedures of the Depositary; provided, however,
notices of redemption may be sent more than 60 days prior to a Redemption Date if the notice is issued in connection with the Issuer’s
exercise of its legal defeasance or its covenant defeasance option in accordance with Section 8.1(b) or the satisfaction
and discharge of this Indenture in accordance with Section 8.1(a).
The notice will identify the Notes to be redeemed
and will state:
(1) the
Redemption Date;
(2) the
Redemption Price (if then determined and otherwise the basis for its determination);
(3) the
name and address of the Paying Agent where Notes are to be surrendered;
(4) that
Notes called for redemption must be surrendered to the Paying Agent to collect the Redemption Price;
(5) if
fewer than all the outstanding Notes are to be redeemed, the identification and principal amounts of the particular Notes to be redeemed;
(6) that,
unless the Issuer defaults in making such redemption payment, interest on Notes (or portion thereof) called for redemption ceases to accrue
on and after the Redemption Date;
(7) the
CUSIP, ISIN or similar number, if any, printed on the Notes being redeemed;
(8) that
no representation is made as to the correctness or accuracy of the CUSIP, ISIN or similar number, if any, listed in such notice or
printed on the Notes; and
(9) any
conditions precedent to such redemption.
At the Issuer’s request, the Trustee will
give the notice of redemption in the Issuer’s name and at the Issuer’s expense; provided, however, that the
Issuer shall have delivered to the Trustee, at least five (5) Business Days prior to the giving of notice of redemption (or such
shorter period as is acceptable to the Trustee), an Officer’s Certificate requesting that the Trustee give such notice and setting
forth the information to be stated in the notice as provided in the preceding paragraph.
Section 3.4. Effect
of Notice of Redemption.
Once notice of redemption is sent to Holders, Notes
(or portions thereof) called for redemption become irrevocably due and payable on the Redemption Date and at the Redemption Price, subject
to the satisfaction of any condition permitted below. A notice of redemption (including upon an Equity Offering or in connection with
a transaction (or series of related transactions) or an event that constitutes a Change of Control) may, at the Issuer’s discretion,
be given prior to the completion or the occurrence thereof and any such redemption or purchase may, at the Issuer’s discretion,
be subject to one or more conditions precedent, including, but not limited to, completion or occurrence of the related Equity Offering,
transaction or event, as the case may be. In addition, if such redemption or purchase is subject to the satisfaction of one or more conditions
precedent, such notice shall describe each such condition, and if applicable, shall state that, in the Issuer’s discretion, the
redemption or purchase may be delayed until such time (including more than 60 days after the date the notice of redemption or offer to
purchase was mailed or delivered, including by electronic transmission) as any or all such conditions shall be satisfied or waived, or
such redemption or purchase may not occur and such notice may be rescinded in the event that any or all such conditions shall not have
been satisfied or waived by the redemption or purchase date, or by the redemption or purchase date so delayed, or such notice or offer
may be rescinded at any time in the Issuer’s discretion if in the good faith judgment of the Issuer any or all of such conditions
will not be satisfied or waived. In addition, the Issuer may provide in such notice or offer that payment of the redemption or purchase
price and performance of the Issuer’s obligations with respect to such redemption or offer to purchase may be performed by another
Person. In no event shall the Trustee be responsible for monitoring, or charged with knowledge of, the maximum aggregate amount of the
Notes eligible under the Indenture to be redeemed or the actual amount of the Notes to be redeemed without notice thereof from the Issuer.
Upon surrender to the Paying Agent, such Notes shall be paid at the Redemption Price stated in the notice, plus accrued and unpaid interest
to, but not including, the Redemption Date; provided that if the Redemption Date is after the taking of a record of the Holders
on a record date and on or prior to the related Interest Payment Date, the accrued and unpaid interest shall be payable to the Person
in whose name the redeemed Notes are registered on such record date. Failure to give notice or any defect in the notice to any Holder
shall not affect the validity of the notice to any other Holder.
Section 3.5. Deposit
of Redemption Price.
No later than 11:00 a.m. (New York City time)
on the Redemption Date, the Issuer shall deposit with the Paying Agent (or, if the Issuer or a Subsidiary is the Paying Agent, shall segregate
and hold in trust) money sufficient to pay the Redemption Price of and accrued and unpaid interest on all Notes to be redeemed on that
date. If the Issuer complies with the provisions of this Section 3.5, then on and after the Redemption Date, interest will
cease to accrue on the Notes or the portions of Notes called for redemption.
Section 3.6. Notes
Redeemed in Part.
Upon cancellation of a Note that is redeemed in
part, the Issuer shall issue and the Trustee shall, upon receipt of an Issuer Order, authenticate for the Holder (at the Issuer’s
expense) a new Note equal in principal amount to the unredeemed portion of the Note surrendered. The Trustee shall notify the Registrar
of the issuance of such new Note.
Section 3.7. Optional
Redemption.
(a) On
or after January 15, 2027, the Issuer may, on any one or more occasions, redeem all or a part of the Notes at any time or from time
to time, at the Redemption Prices (expressed as percentages of principal amount) set forth below plus accrued and unpaid interest thereon,
if any, on the Notes redeemed, to, but excluding, the applicable Redemption Date (subject to the right of Holders of record on the relevant
Record Date to receive interest due on the relevant Interest Payment Date falling on or prior to the applicable Redemption Date), if redeemed
during the twelve-month period beginning on January 15 of the years indicated below:
Notes |
| |
| | |
| |
Year | | |
Percentage | |
2027 | | |
| 103.375 | % |
2028 | | |
| 101.688 | % |
2029 and thereafter | | |
| 100.000 | % |
(b) At
any time prior to January 15, 2027, the Issuer may on any one or more occasions redeem up to an aggregate of 40% of the aggregate
principal amount of Notes (including, for greater certainty, any Additional Notes) then outstanding under this Indenture at a Redemption
Price (as calculated by the Issuer) equal to (i) 106.750% of the aggregate principal amount thereof, with an amount equal to or less
than the Net Cash Proceeds from one or more Equity Offerings to the extent such net cash proceeds are received by or contributed to the
Issuer plus (ii) accrued and unpaid interest thereon, if any, to, but excluding, the applicable Redemption Date (subject to the right
of Holders of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date falling on or prior to
the applicable Redemption Date); provided that (1) at least 50% of the aggregate principal amount of the Notes originally
issued under this Indenture on the Issue Date remain outstanding immediately after the occurrence of such redemption (but excluding any
Additional Notes issued under the Indenture after the Issue Date); and (2) each such redemption occurs within 180 days of the date
of the closing of any such Equity Offering.
(c) In
addition, at any time prior to January 15, 2027, the Issuer may on any one or more occasions redeem all or a part of the Notes at
a Redemption Price equal to the sum of: (1) the principal amount thereof, plus (2) the Applicable Premium at the Redemption
Date, plus (3) accrued and unpaid interest, if any, to, but excluding, the applicable Redemption Date (subject to the right of Holders
of record on the relevant record date to receive interest due on the relevant Interest Payment Date falling on or prior to the applicable
Redemption Date).
(d) Any
redemption pursuant to this Section 3.7 shall be made pursuant to the provisions of Section 3.1 through Section 3.6
hereof.
(e) The
Notes will not be redeemable at the option of the Issuer except as set forth in this Section 3.7, Section 3.8
and in Section 4.11(i). The Issuer and any of the Subsidiaries and their Affiliates may acquire the Notes by means other than
a redemption, whether pursuant to a tender offer, open market transactions, by private purchase or otherwise, so long as the acquisition
does not otherwise violate the terms of this Indenture.
Unless the Issuer defaults in the payment of the
redemption price, interest will cease to accrue on the Notes or portions thereof called for redemption on the applicable redemption date.
Section 3.8. Tax
Redemption.
If, as a result of:
| (1) | any amendment to, or change in, the laws or treaties (or regulations or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction
which is announced and becomes effective on or after the Issue Date (or, where a jurisdiction in question does not become a Relevant Taxing
Jurisdiction until a later date, such later date); or |
| (2) | any amendment to, or change in, the existing official position or the introduction of an official position regarding the application,
interpretation, administration or assessing practices of any such laws, regulations or rulings of any Relevant Taxing Jurisdiction, or
a judicial decision rendered by a court of competent jurisdiction (whether or not made, taken or reached with respect to the Issuer or
any of the Guarantors) which is announced and becomes effective on or after the Issue Date (or, where a jurisdiction in question does
not become a Relevant Taxing Jurisdiction until a later date, such later date), |
the Issuer or any Guarantor has become or will
become obligated to pay, on the next date on which any amount would be payable with respect to the Notes or a Note Guarantee, as applicable,
Additional Amounts or indemnification payments as described under Section 4.21 with respect to the Relevant Taxing Jurisdiction,
which payment the Issuer or the Guarantor cannot avoid with the use of reasonable measures available to it (including making payment through
a paying agent located in another jurisdiction), then the Issuer may, at its option, redeem all but not less than all of the Notes, upon
not more than 60 days’ notice prior to the earliest date on which the Issuer or a Guarantor, as applicable, would be required to
pay such Additional Amounts or indemnification payments, at a redemption price of 100% of their principal amount, plus accrued and unpaid
interest, if any, to the redemption date. Prior to the giving of any notice of redemption described in this Section 3.8, the
Issuer will deliver to the Trustee a written opinion of independent legal counsel to the Issuer or the Guarantor, as applicable, of recognized
standing to the effect that the Issuer or the Guarantor, as applicable, has or will become obligated to pay such Additional Amounts or
indemnification payments as a result of an amendment or change as set forth in this Section 3.8.
Unless the Issuer defaults in the payment of the
redemption price, interest will cease to accrue on the Notes or portions thereof called for redemption on the applicable redemption date.
Section 3.9. Mandatory
Redemption.
The Issuer shall not be required to make any mandatory
redemption or sinking fund payments with respect to the Notes.
Article IV
COVENANTS
Section 4.1. Payment
of Notes.
The Issuer covenants and agrees for the benefit
of the Holders that it shall promptly pay the principal of, premium, if any, and interest on the Notes on the dates and in the manner
provided in the Notes and this Indenture. Payments of principal, premium, if any, and interest on the Notes shall be deemed due for all
purposes under this Indenture whether such payments are due at Stated Maturity, upon redemption, upon required repurchase pursuant to
Section 4.7 or 4.11 hereof, upon declaration or otherwise. Principal, premium, if any, and interest on the Notes shall
be considered paid on the date due if by 11:00 a.m. (New York City time) on such date the Paying Agent holds in accordance with this
Indenture money sufficient to pay all principal, premium, if any, and interest then due.
The Issuer will pay, to the extent lawful, interest
(including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal and premium, if any, at the rate then
in effect on the Notes; it will pay, to the extent lawful, interest (including post-petition interest in any proceeding under any Bankruptcy
Law) on overdue installments of interest (without regard to any applicable grace periods), from time to time on demand at the same rate
as on overdue principal.
Section 4.2. Reports.
(a) The
Issuer will provide to the Trustee, and the Trustee shall deliver to the Holders, the following:
(1) within
60 days after the end of each quarterly fiscal period in each fiscal year of the Issuer, other than the last quarterly fiscal period of
each such fiscal year, copies of:
(i) an
unaudited consolidated balance sheet of the Issuer as at the end of such quarterly fiscal period and unaudited consolidated statements
of income, cash flows and changes in shareholders’ equity of the Issuer for such quarterly fiscal period and, in the case of the
second and third quarters, for the portion of the fiscal year ending with such quarter; and
(ii) an
associated “Management’s Discussion and Analysis” prepared on a basis substantially consistent with the “Management’s
Discussion and Analysis” included in the Offering Memorandum; and
(2) within
90 days after the end of each fiscal year of the Issuer, copies of:
(i) an
audited consolidated balance sheet of the Issuer as at the end of such year and audited consolidated statements of income, cash flows
and changes in shareholders’ equity of the Issuer for such fiscal year, together with a report of the Issuer’s auditors thereon;
and
(ii) an
associated “Management’s Discussion and Analysis” prepared on a basis substantially consistent with the “Management’s
Discussion and Analysis” included in the Offering Memorandum; and
(3) promptly
from time to time after the occurrence of an event required to be therein reported (and in any event within the time periods specified
in the Commission’s rules and regulations), current reports that would be required to be filed with the Commission on Form 8-K
Items 1.03, 2.01, 4.01, 5.01, 5.02(b) (with respect to the Issuer’s chief executive officer or chief financial officer only)
and 5.02(c) (with respect to the Issuer’s chief executive officer or chief financial officer only) if the Issuer were required
to file such reports; provided that (a) no such current report will be required to be provided if the Issuer determines in
its good faith judgment that such event is not material to the business, assets, operations or prospects of the Issuer and its Restricted
Subsidiaries, taken as a whole, or if the Issuer determines in its good faith judgment that such disclosure would otherwise cause competitive
harm to the business, assets, operations, financial position or prospects of the Issuer and its Restricted Subsidiaries, taken as a whole
(in which event such nondisclosure shall be limited only to specific provisions that would cause material harm and not the occurrence
of the event itself) and (b) in no event will any financial statements of an acquired business be required to be included in any
such current report;
in the case of each of Sections 4.2(a)(1) and 4.2(a)(2) prepared
in accordance with GAAP. The reports referred to in Sections 4.2(a)(1) and 4.2(a)(2) are collectively referred
to as the “Financial Reports.”
(b) The
Issuer will, within 15 Business Days after providing to the Trustee any Financial Report, hold a conference call to discuss such Financial
Report and the results of operations for the applicable reporting period. If the Issuer does not file reports with the SEC, then the Issuer
will also maintain a website to which Holders, prospective investors and securities analysts are given access, on which not later than
the date by which the Financial Reports are required to be provided to the Trustee pursuant to Section 4.2(a), the Issuer
(i) makes available such Financial Reports and (ii) provides details about how to access on a toll-free basis the quarterly
conference calls described above.
(c) Notwithstanding
the foregoing, (1) all Financial Reports will be deemed to have been provided to the Trustee and to the Holders to the extent filed
(i) on the System for Electronic Data Analysis and Retrieval (“SEDAR+”) or any successor system thereto or (ii) with
the Commission via the Electronic Data Gathering, Analysis and Retrieval (“EDGAR”) filing system or any successor system
thereto, (2) the requirements of this Section 4.2 will be deemed satisfied by the posting of reports that would be required
to be provided to the Holders on the Issuer’s website (or that of any of the Issuer’s parent companies), and (3) if the
Issuer holds a quarterly conference call for its equity holders within 15 Business Days of filing a Financial Report on SEDAR+ or any
successor system thereto, the Issuer will no longer be required to hold a separate conference call in respect of such Financial Report
for the Holders as provided above. The Trustee will not be responsible for monitoring compliance with filings on SEDAR+ or EDGAR.
(d) In
addition, for so long as any Notes remain outstanding during any period when the Issuer is not subject to Section 13 or 15(d) of
the 1934 Act, or otherwise permitted to furnish the Commission with certain information pursuant to Rule 12g3-2(b) of the 1934
Act, the Issuer will furnish to Holders of Notes and to prospective investors, upon their request, the information required to be delivered
pursuant to Rule 144A(d)(4) under the 1933 Act.
(e) Notwithstanding
anything herein to the contrary, the Issuer will not be deemed to have failed to comply with any of its obligations hereunder for purposes
of Section 6.1(3) until 120 days after the date any report under this Section 4.2 is due.
Delivery of reports, information and documents
to the Trustee hereunder is for informational purposes only and the Trustee’s receipt of the foregoing shall not constitute constructive
notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance
with any of their covenants hereunder (as to which Trustee is entitled to rely exclusively on Officer’s Certificates).
Section 4.3. Incurrence
of Indebtedness and Issuance of Disqualified Stock.
(a) The
Issuer will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee
or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (in any such case, “incur”)
any Indebtedness, and the Issuer will not issue any shares of Disqualified Stock or permit any of its Restricted Subsidiaries to issue
any shares of Disqualified Stock or preferred stock; provided, however, that the Issuer may incur Indebtedness or issue shares
of Disqualified Stock (in each case, including Acquired Indebtedness) and any Restricted Subsidiary may incur Indebtedness (in each case,
including Acquired Indebtedness) or issue shares of Disqualified Stock or preferred stock, if immediately after and giving effect thereto,
either (x) the Fixed Charge Coverage Ratio for the Issuer’s most recently ended four full fiscal quarters for which internal
financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified
Stock or preferred stock is issued would have been not less than 2.0 to 1.0, or (y) the Consolidated Net Leverage Ratio is less than
or equal to 6.75:1.00, in each case, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom),
as if the additional Indebtedness had been incurred, or such Disqualified Stock or preferred stock had been issued, as the case may be,
at the beginning of such four-quarter period; provided that Restricted Subsidiaries that are not Guarantors may not incur Indebtedness
or issue Disqualified Stock or preferred stock if, after giving pro forma effect to such incurrence or issuance (including a pro forma
application of the net proceeds therefrom) the amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that would be
outstanding pursuant to this clause (a) would exceed in aggregate the greater of (i) $45.0 million and (ii) 1.5% of Total
Assets.
(b) Section 4.3(a) will
not prohibit the incurrence of any of the following items of Indebtedness (collectively, “Permitted Debt”):
(1) the
incurrence by the Issuer and its Restricted Subsidiaries of Indebtedness under Credit Facilities (with letters of guarantee, tender checks
and letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Issuer and its Restricted
Subsidiaries thereunder) not to exceed the sum of (i) the greater of (x) $4,350.0 million and (y) the maximum amount such
that after giving pro forma effect to the incurrence of such additional Indebtedness and the application of the net proceeds therefrom,
the Secured Net Leverage Ratio of the Issuer would be no greater than 5.50 to 1.00 plus (ii) the greater of (x) $400.0 million
and (y) 100% of Consolidated EBITDA for the most recently completed four fiscal quarters for which internal annual or quarterly financial
statements are available calculated in a manner consistent with any pro forma adjustments to Consolidated EBITDA set forth in the definition
of Fixed Charge Coverage Ratio, at any one time outstanding; provided that for the purposes of determining the amount that can
be incurred under clause (i)(y) hereof all Indebtedness incurred under clauses (i)(y) shall be deemed to be Secured Indebtedness;
(2) Indebtedness
incurred under Credit Facilities or otherwise in connection with one or more standby letters of credit, bankers’ acceptances, completion
guarantees, performance bonds, bid bonds, appeal bonds or surety bonds or other similar reimbursement obligations, in each case, issued
in the ordinary course of business (including for the purpose of providing security for environmental reclamation obligations to government
agencies, workers’ compensation claims, payment obligations in connection with self-insurance or similar statutory and other requirements)
and not in connection with the borrowing of money or the obtaining of an advance or credit;
(3) the
incurrence by the Issuer of Indebtedness represented by the Notes issued on the Issue Date and the incurrence by the Guarantors of the
Note Guarantees;
(4) the
incurrence by the Issuer or any of its Restricted Subsidiaries of Indebtedness or Attributable Debt (including obligations represented
by Financing Lease Obligations or Purchase Money Obligations), in each case, incurred for the purpose of financing all or any part of
the purchase price or cost of design, lease, expansion, construction, maintenance, upgrade, installation, development, improvement, replacement
or repair of property (real or personal), plant or equipment or other assets used in the business of the Issuer or any of its Restricted
Subsidiaries, whether through the direct purchase of assets or the Equity Interests of any Person owning such assets, in an aggregate
outstanding principal amount, including all outstanding Permitted Refinancing Indebtedness incurred to refund, refinance or replace any
Indebtedness incurred pursuant to this clause (4), not to exceed the greater of (i) $145.0 million and (ii) 5.0% of Total Assets
as of any date of incurrence (after giving effect to the incurrence of such Indebtedness and the application of the proceeds therefrom);
(5) the
incurrence by the Issuer or any of its Restricted Subsidiaries of the Existing Indebtedness and any guarantees with respect thereto;
(6) the
incurrence by the Issuer or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds
of which are used to renew, refund, refinance, replace, defease or discharge any Indebtedness (other than intercompany Indebtedness between
or among the Issuer and any of its Restricted Subsidiaries) that was incurred in reliance on Section 4.3(a) or Sections
4.3(b)(3), (4), (5), (6) or (12);
(7) the
incurrence by the Issuer or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Issuer and any of its
Restricted Subsidiaries; provided, however, that
(A) any
subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Issuer
or a Restricted Subsidiary of the Issuer; and
(B) any
sale or other transfer of any such Indebtedness to a Person that is not either the Issuer or a Restricted Subsidiary of the Issuer
will
be deemed, in each case, to constitute an incurrence of such Indebtedness by the Issuer or such Restricted Subsidiary, as the case may
be, that was not permitted by this clause (7);
(8) the
issuance of preferred stock by any Restricted Subsidiary of the Issuer to the Issuer or to any other Restricted Subsidiary of the Issuer;
provided, however, that
(A) any
subsequent issuance or transfer of Equity Interests that results in any such preferred stock being held by a Person other than the Issuer
or a Restricted Subsidiary of the Issuer; and
(B) any
sale or other transfer of any such preferred stock to a Person that is not either the Issuer or a Restricted Subsidiary of the Issuer
will be deemed, in each case, to constitute an incurrence of such Indebtedness by the Issuer or such Restricted Subsidiary, as the case
may be, that was not permitted by this clause (8);
(9) the
incurrence by the Issuer or any of its Restricted Subsidiaries of Hedging Obligations in the ordinary course of business and not for
speculative purposes;
(10) the
guarantee by the Issuer or any of its Restricted Subsidiaries of Indebtedness of the Issuer or a Restricted Subsidiary that was permitted
to be incurred by another provision of this Section 4.3 (including, for greater certainty, Note Guarantees in respect of
Additional Notes so permitted to be incurred); provided that if the Indebtedness being guaranteed is subordinated in right of
payment to or pari passu in right of payment with the Notes or any of the Note Guarantees, then the guarantee must be subordinated in
right of payment or pari passu in right of payment to the same extent as the Indebtedness guaranteed;
(11) Indebtedness
of the Issuer or any of its Restricted Subsidiaries arising (i) from the honoring by a bank or other financial institution of a
check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or (ii) in connection with
endorsement of instruments for deposit in the ordinary course of business;
(12) the
incurrence by the Issuer or any of its Restricted Subsidiaries of Cash Management Obligations in the ordinary course of business;
(13) the
incurrence of (1) Indebtedness or Disqualified Stock (i) of the Issuer or any of its Restricted Subsidiaries incurred or assumed
in connection with an acquisition of any assets (including Capital Stock), business or Person or Investment and (ii) of any Person
that is acquired by the Issuer or any of its Restricted Subsidiaries or merged into or consolidated or amalgamated with the Issuer or
a Restricted Subsidiary in accordance with the terms of the Indenture and (2) Indebtedness incurred or Disqualified Stock issued
or, in each case, assumed in anticipation of, or in connection with, an acquisition of any assets, business or Person; provided,
that after giving effect to such acquisition, merger, consolidation or amalgamation and the incurrence of such Indebtedness or Disqualified
Stock, either
(A) (i) the
Issuer would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth
in Section 4.3(a) or (ii) the Fixed Charge Coverage Ratio is equal to or greater than immediately prior to such
Person becoming a Restricted Subsidiary or to such merger, amalgamation, consolidation or acquisition; or
(B) (i) the
Issuer would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Net Leverage Ratio test set
forth in Section 4.3(a) or (ii) the Consolidated Net Leverage Ratio of the Issuer and its Restricted Subsidiaries
is equal to or less than immediately prior to such Investment, acquisition, merger, amalgamation or consolidation;
(14) the
incurrence by the Issuer or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate outstanding principal amount
(or accreted value, as applicable), including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness
incurred pursuant to this clause (14), not to exceed the greater of (i) $240.0 million and (ii) 60.0% of Consolidated EBITDA
for the most recently completed four fiscal quarters for which internal annual or quarterly financial statements are available calculated
in a manner consistent with any pro forma adjustments to Consolidated EBITDA set forth in the definition of Fixed Charge Coverage Ratio;
(15) Indebtedness
consisting of (i) the financing of insurance premiums in an amount not to exceed, at any time outstanding, the greater of (a) $30.0
million and (b) 1.0% of Total Assets determined at the time of incurrence of such Indebtedness (after giving effect to the incurrence
of such Indebtedness and the application of the proceeds therefrom) or (ii) take-or-pay obligations contained in supply arrangements,
in each case, in the ordinary course of business;
(16) additional
Indebtedness of the Issuer and its Restricted Subsidiaries to fund an acquisition or Investment in an aggregate principal amount not
to exceed at any time outstanding the greater of (a) $130.0 million and (b) 4.0% of Total Assets determined at the time of
incurrence of such Indebtedness (after giving effect to the incurrence of such Indebtedness and the application of the proceeds therefrom);
provided that no Event of Default shall be continuing at the time the relevant agreement with respect to such acquisition or Investment
is entered into;
(17) Indebtedness
incurred by a Restricted Subsidiary that is not a Guarantor which, when aggregated with the principal amount of all other Indebtedness
incurred pursuant to this clause (17) and then outstanding, does not exceed the greater of (i) $45.0 million and (ii) 1.5%
of Total Assets determined at the time of incurrence of such Indebtedness (after giving effect to the incurrence of such Indebtedness
and the application of the proceeds therefrom); and
(18) Contribution
Indebtedness.
(c) For
purposes of determining compliance with this Section 4.3:
(1) in
the event that an item of Indebtedness (or any portion thereof) meets the criteria of more than one of the categories of Permitted Debt
described in Sections 4.3(b)(2) through 4.3(b)(18), or is entitled to be incurred pursuant to Section 4.3(a),
the Issuer will be permitted to divide and classify (or later redivide and reclassify in whole or in part) such item of Indebtedness
in whole or in part in any manner that complies with this Section 4.3, including by allocation to more than one other type
of Indebtedness, except that Indebtedness under the Credit Agreements that is outstanding on the Issue Date will be deemed to have been
incurred on such date under Section 4.3(b)(1) and may not be reclassified, other than within Section 4.3(b)(1).
Amounts incurred under clause (ii) of Section 4.3(b)(1), may, and will automatically be, reclassified into clause (i) thereof
to the extent of the availability under such clause (i);
(2) at
the time of incurrence, the Issuer will be entitled to divide and classify an item of Indebtedness in more than one of the categories
of Indebtedness described in Section 4.3(a) or Sections 4.3(b)(2) through 4.3(b)(18) (or any portion
thereof) without giving pro forma effect to the Indebtedness incurred pursuant to any other provision of this Section 4.3
when calculating the amount of Indebtedness that may be incurred pursuant to any such clause or paragraph;
(3) the
outstanding principal amount of any particular Indebtedness shall be counted only once, and any obligations arising under any guarantee,
Lien, letter of credit or similar instrument supporting such Indebtedness shall not be double counted;
(4) Indebtedness
or Disqualified Stock of any Person (i) existing at the time such Person becomes a Restricted Subsidiary of the Issuer or is merged
into, amalgamated with or consolidated with the Issuer or any of its Restricted Subsidiaries or (ii) assumed in connection with
the acquisition of assets from such Person (any Indebtedness or Disqualified Stock described in the foregoing clauses (i) and (ii),
“Acquired Indebtedness”) shall be deemed to have been incurred or issued by a Restricted Subsidiary at the time such
Person becomes a Restricted Subsidiary; provided that any such Indebtedness or Disqualified Stock that is redeemed, defeased,
retired or otherwise repaid at the time of or immediately upon the consummation of the transaction by which such Person becomes a Restricted
Subsidiary of the Issuer (or is merged into, amalgamated with or consolidated with the Issuer or any of its Restricted Subsidiaries,
as the case may be) will be deemed not to have been incurred or issued for the purposes of this Section 4.3;
(5) the
accrual of interest, the accretion or amortization of original issue discount, the payment of interest or dividends in the form of additional
Indebtedness, Disqualified Stock or preferred stock, as applicable, with the same, or less onerous, terms (as determined in good faith
by the Issuer), the reclassification of preferred stock of the Issuer or any Guarantor as Indebtedness due to a change in accounting
principles, and the payment of dividends or the making of any distribution on Disqualified Stock or preferred stock in the form of additional
shares of the same class of Disqualified Stock or preferred stock, the accrual of dividends on Disqualified Stock or preferred stock
will not be deemed to be an incurrence of Indebtedness or an Issuance of Disqualified Stock for purposes of this Section 4.3;
(6) if
obligations in respect of letters of credit are incurred pursuant to Credit Facilities and are being treated as incurred pursuant Section 4.3(b)(1) and
the letters of credit relate to other Indebtedness, then such other Indebtedness will not constitute Indebtedness for purposes of this
Section 4.3; and
(7) in
the event that the Issuer or a Restricted Subsidiary enters into or increases commitments under a revolving credit facility incurred
under Section 4.3(b)(1), the Fixed Charge Coverage Ratio, the Secured Net Leverage Ratio or the Consolidated Net Leverage
Ratio, as applicable, for borrowings and reborrowings thereunder (and including letters of guarantee, tender checks and letters of credit
thereunder) may be determined, at the election of the Issuer, on the date of such revolving credit facility or on the date of such increase
in commitments (assuming that the full amount thereof has been borrowed as of such date), and, if such Fixed Charge Coverage Ratio, the
Secured Net Leverage Ratio or the Consolidated Net Leverage Ratio, as applicable, test is satisfied with respect thereto at such time,
any borrowing or reborrowing thereunder (and including letters of guarantee, tender checks and letters of credit thereunder) will be
permitted under this covenant irrespective of the Fixed Charge Coverage Ratio, the Secured Net Leverage Ratio or the Consolidated Net
Leverage Ratio, as applicable, at the time of any borrowing or reborrowing (or and including letters of guarantee, tender checks or letters
of credit thereunder) (the committed amount permitted to be borrowed or reborrowed (and the issuance and creation of letters of credit
and bankers’ acceptances) on a date pursuant to the operation of this Section 4.3(c) shall be the “Reserved
Indebtedness Amount” as of such date for purposes of the Fixed Charge Coverage Ratio, the Secured Net Leverage Ratio or the
Consolidated Net Leverage Ratio, as applicable).
(d) For
purposes of determining compliance with any Canadian dollar or other currency denominated restriction on the incurrence of Indebtedness,
the Canadian dollar or other currency-equivalent principal amount of Indebtedness denominated in a foreign currency shall be calculated
based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred, in the case of term Indebtedness,
or first committed or first incurred (whichever yields the lower Canadian dollar or other currency-equivalent), in the case of revolving
credit borrowings. However, if the Indebtedness is incurred to refinance other Indebtedness denominated in a foreign currency, and the
refinancing would cause the applicable Canadian dollar or other currency denominated restriction to be exceeded if calculated at the
relevant currency exchange rate in effect on the date of such refinancing, such Canadian dollar or other currency denominated restriction
shall be deemed not to have been exceeded so long as the principal amount of the refinancing Indebtedness does not exceed the principal
amount of the Indebtedness being refinanced (except to the extent necessary to pay all fees, defeasance costs, expenses and premiums
(including tender premiums) incurred in connection therewith).
Notwithstanding
any other provision of this Section 4.3, the maximum amount of Indebtedness that the Issuer and its Restricted Subsidiaries
may incur pursuant to this Section 4.3 shall not be deemed to be exceeded, with respect to any outstanding Indebtedness,
solely as a result of fluctuations in the exchange rate of currencies. The principal amount of any Indebtedness incurred to refinance
other Indebtedness, if incurred in a different currency from the Indebtedness being refinanced, will be calculated based on the currency
exchange rate applicable to the currencies in which the respective Indebtedness is denominated that is in effect on the date of such
refinancing.
Neither
the Issuer nor any Guarantor will incur any additional Indebtedness (including Permitted Debt) that is contractually subordinated in
right of payment to any other Indebtedness of such Person unless such additional Indebtedness is also contractually subordinated in right
of payment to the Notes or the applicable Note Guarantee, as the case may be, on substantially identical terms; provided, however,
that no Indebtedness will be deemed to be contractually subordinated in right of payment to any other Indebtedness solely by virtue of
being unsecured or by virtue of being secured on a junior priority basis.
Section 4.4. Restricted
Payments.
(a) The
Issuer will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly:
(1) declare
or pay any dividend or make any other payment or distribution on account of the Issuer’s or any of its Restricted Subsidiaries’
Equity Interests (including, without limitation, in connection with any merger, amalgamation or consolidation involving the Issuer or
any of its Restricted Subsidiaries) or to the direct or indirect holders of the Issuer’s or any of its Restricted Subsidiaries’
Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Capital Stock (other than Disqualified
Stock) of the Issuer, or in warrants, options or other rights to acquire Capital Stock (other than Disqualified Stock) of the Issuer,
and (ii) dividends or distributions payable to the Issuer or any of its Restricted Subsidiaries);
(2) purchase,
retract, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger, amalgamation
or consolidation involving the Issuer), in whole or in part, any Equity Interests of the Issuer (other than any such Equity Interests
owned by the Issuer or a Restricted Subsidiary);
(3) make
any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Subordinated Indebtedness,
except for (i) a payment of interest at the Stated Maturity thereof or of principal not earlier than one year prior to the Stated
Maturity thereof and (ii) any such Indebtedness owed to the Issuer or any of its Restricted Subsidiaries; or
(4) make
any Restricted Investment (all such payments and other actions set forth in clauses (a)(1) through (a)(4) above being collectively
referred to as “Restricted Payments”)
(b) unless,
at the time of and after giving effect to such Restricted Payment:
(1) in
the case of a Restricted Payment other than a Restricted Investment, no Event of Default has occurred and is continuing or would occur
as a consequence of such Restricted Payment and in the case of a Restricted Investment, no Event of Default as set forth in Sections
6.1(1), (2), (4), (7) or (8) below has occurred and is continuing or would occur as a consequence
thereof;
(2) the
Issuer would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been
made at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant
to Section 4.3(a); and
(3) such
Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Issuer and its Restricted Subsidiaries
after February 1, 2016 (other than pursuant to Sections 4.4(c)(3) through 4.4(c)(18) below), is less than the
sum, without duplication, of:
(A) 50%
of the Consolidated Net Income for the period (taken as one accounting period) from February 1, 2016 to the end of the Issuer’s
most recently ended fiscal quarter for which internal annual or quarterly financial statements are available at the time of such Restricted
Payment (or, if such Consolidated Net Income for such period is a loss, less 100% of such loss); plus
(B) 100%
of the aggregate Net Cash Proceeds received by the Issuer since February 1, 2016 (A) as a contribution to its common equity
capital, (B) from the issue or sale of Capital Stock (other than Disqualified Stock) of the Issuer, (C) from the issue or sale
of warrants, options or other rights to acquire Capital Stock (other than Disqualified Stock) of the Issuer, and (D) from the issue
or sale of convertible or exchangeable Disqualified Stock of the Issuer or convertible or exchangeable debt securities of the Issuer,
in each case that have been converted into or exchanged for Capital Stock (other than Disqualified Stock) of the Issuer or warrants,
options or other rights to acquire Capital Stock (other than Disqualified Stock) of the Issuer (in the case of each of the foregoing
clauses (A) through (D), other than (1) a contribution from, or Capital Stock, Disqualified Stock or debt securities sold to,
a Subsidiary of the Issuer) or (2) Excluded Contributions; plus
(C) 100%
of the Fair Market Value of property other than cash received by the Issuer since February 1, 2016 in consideration of (or in exchange
for) its Capital Stock (other than Disqualified Stock); plus
(D) 100%
of the principal amount of any Indebtedness, or the liquidation preference or maximum fixed repurchase price, as the case may be, of
any Disqualified Stock of the Issuer issued after February 1, 2016 (other than Indebtedness or Disqualified Stock issued to a Restricted
Subsidiary) which has been converted into or exchanged for Capital Stock of the Issuer (other than Disqualified Stock); plus
(E) to
the extent that any Restricted Investment that was made after February 1, 2016 is (i) sold for cash or otherwise cancelled,
liquidated, or repaid for cash, or (ii) in the case of a Restricted Investment constituting a guarantee, released, the initial amount
of such Restricted Investment (or, if less, in the case of a sale, cancellation, liquidation or repayment for cash described in the foregoing
subclause (i), the amount of cash received upon such sale, cancellation, liquidation or repayment), in each case, to the extent that
any such payments or proceeds are not already included in Consolidated Net Income of the Issuer for the applicable period; provided,
for certainty, that any amount that would otherwise be included in this clause (E) as a result of the release of a guarantee due
to the payment thereunder by the Issuer or any of its Restricted Subsidiaries shall be reduced by the aggregate amount of such payments;
plus
(F) upon
a redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary, the lesser of (A) the Fair Market Value of the Issuer’s
and its Restricted Subsidiaries’ Investments in such Subsidiary as at the date of such redesignation and (B) the Fair Market
Value of such Investments at the date on which such Subsidiary was originally designated as an Unrestricted Subsidiary; plus
(G) 100%
of any dividends or distributions received in cash by the Issuer or any of its Restricted Subsidiaries from any Unrestricted Subsidiary
after February 1, 2016, to the extent not already included in Consolidated Net Income of the Issuer for the applicable period; plus
(H) 100%
of the aggregate amount of Retained Declined Proceeds.
(c) The
preceding provisions will not prohibit:
(1) the
payment by the Issuer or any Restricted Subsidiary of any dividend or distribution, or the consummation of any irrevocable redemption
of any Subordinated Indebtedness, within 60 days after the date of the declaration of the dividend or distribution or the giving of the
notice of redemption, as the case may be, if at the date of declaration or notice the dividend or distribution or redemption of such
Subordinated Indebtedness would have been permitted by this Indenture;
(2) the
making of any Restricted Payment in exchange for, or out of the Net Cash Proceeds of the substantially concurrent sale (other than to
a Subsidiary of the Issuer) of, Capital Stock (other than Disqualified Stock) of the Issuer or warrants, options or other rights to acquire
Capital Stock (other than Disqualified Stock) of the Issuer; provided that the amount of any such Net Cash Proceeds that are utilized
for any such Restricted Payment will be excluded from Section 4.4(b)(3)(B);
(3) the
defeasance, redemption, repurchase, retirement or other acquisition of Subordinated Indebtedness of the Issuer or any Guarantor with
the net cash proceeds from a substantially concurrent incurrence of, or in exchange for, any Permitted Refinancing Indebtedness;
(4) the
declaration and payment of any dividend or other distribution by a Restricted Subsidiary that is not a Wholly Owned Restricted Subsidiary
to the holders of its Capital Stock on a pro rata basis;
(5) the
purchase, repurchase, redemption or other acquisition or retirement for value of Equity Interests deemed to occur upon the exercise or
exchange of stock options, warrants or other convertible securities if the Equity Interests represent a portion of the exercise or exchange
price thereof and repurchases or other acquisitions or retirement for value of Equity Interests deemed to occur upon the withholding
of a portion of the Equity Interests granted or awarded to an employee to pay for the taxes payable by such employee either upon such
grant or award or in connection with any such exercise or exchange of stock options, warrants or other convertible securities;
(6) the
payment, purchase, repurchase, redemption, defeasance, acquisition or other retirement for value of Subordinated Indebtedness of the
Issuer or any Restricted Subsidiary (a) in the event of a change of control at a purchase or redemption price no greater than 101%
of the principal amount of such Subordinated Indebtedness, plus any accrued but unpaid interest thereon, or (b) in the event of
an asset sale at a purchase or redemption price no greater than 100% of the principal amount of such Subordinated Indebtedness, plus
any accrued but unpaid interest thereon, in each case, in accordance with provisions similar to Section 4.7 or Section 4.11,
as applicable; provided, however, that, prior to or simultaneously with such payment, purchase, repurchase, redemption, defeasance,
acquisition or retirement, the Issuer has made the Change of Control Offer, Collateral Asset Sale Offer or Asset Sale Offer, if required,
with respect to the Notes and has repurchased all Notes validly tendered for payment and not withdrawn in connection with such Change
of Control Offer, Collateral Asset Sale Offer or Asset Sale Offer;
(7) the
repurchase, redemption or other acquisition of any Equity Interests of the Issuer or any of its Restricted Subsidiaries held by any current
or former officer, director, employee or consultant (or their transferees, estates or beneficiaries) of the Issuer or any of its Restricted
Subsidiaries pursuant to any equity subscription agreement, shareholder agreement, employment agreement, stock option plan, equity incentive
or other plan or similar agreement, in each case in effect as of the Issue Date, in an aggregate amount not to exceed the greater of
(x) $35.0 million and (y) 1.5% of Total Assets in each calendar year of the Issuer (increasing to $70.0 million per year following
an underwritten public Equity Offering) (with unused amounts in any calendar year being carried over to the immediately succeeding three
calendar years); provided, that such amount in any calendar year may be increased by an amount not to exceed:
(A) the
cash proceeds received by the Issuer from the sale of Equity Interests (other than Disqualified Stock) of the Issuer or any direct or
indirect parent of the Issuer (to the extent contributed to the Issuer) to employees, directors, officers or consultants of the Issuer
or any of its Restricted Subsidiaries or any direct or indirect parent of the Issuer that occurs after February 1, 2016 (it being
understood that the amount of such cash proceeds utilized for any such repurchase, retirement, other acquisition or dividend will not
increase the amount available for Restricted Payments under Section 4.4(b)(3)), plus
(B) the
cash proceeds of key man life insurance policies received by the Issuer or any direct or indirect parent of the Issuer (to the extent
contributed to the Issuer) or any of its Restricted Subsidiaries after February 1, 2016;
provided
that the Issuer may elect to apply all or any portion of the aggregate increase contemplated by clauses (7)(A) and (7)(B) above
in any calendar year; and provided, further, that cancellation of Indebtedness owing to the Issuer or any Restricted Subsidiary
from any present or former employees, directors, officers or consultants of the Issuer, any Restricted Subsidiary or the direct or indirect
parents of the Issuer in connection with a repurchase of Equity Interests of the Issuer or any of its direct or indirect parents will
not be deemed to constitute a Restricted Payment for purposes of this Section 4.4 or any other provision of this Indenture;
(8) the
declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of Disqualified Stock of the Issuer
or any of its Restricted Subsidiaries issued after the Issue Date in accordance with Section 4.3;
(9) the
purchase, redemption, acquisition, cancellation or other retirement for nominal value per right of any rights granted to all the holders
of Capital Stock of the Issuer pursuant to any shareholders’ rights plan adopted for the purpose of protecting shareholders from
unfair takeover tactics;
(10) payments
or distributions to satisfy dissenters’ or appraisal rights and the settlement of any claims or actions (whether actual, contingent
or potential) with respect thereto, pursuant to or in connection with a consolidation, amalgamation, merger or transfer of assets that
complies with Section 5.1;
(11) the
making of cash payments in lieu of the issuance by the Issuer of fractional shares in connection with stock dividends, splits or business
combinations or the exercise of warrants, options or other securities convertible or exchangeable for Equity Interests that are not derivative
securities;
(12) the
declaration and payment of dividends on the Issuer’s Capital Stock (or the payment of dividends to any direct or indirect parent
of the Issuer to fund a payment of dividends on such entity’s common equity) after the occurrence of the Issuer’s or such
entity’s initial public offering of up to the sum of (i) 6.0% per annum of the net proceeds received by or contributed to
the Issuer in or from its initial public offering and any subsequent public offering of its Capital Stock, other than public offerings
with respect to the Issuer’s Capital Stock registered on Form S-4 or Form S-8 (or the equivalent forms under the federal
and provincial securities laws of Canada) and other than any public sale constituting an Excluded Contribution and (ii) an aggregate
amount per annum not to exceed 7.0% of Market Capitalization;
(13) Restricted
Payments that are made (a) in an amount that does not exceed the aggregate amount of Excluded Contributions since February 1,
2016 and (b) without duplication with clause (a), in an amount equal to the net cash proceeds from any sale or disposition of, or
distribution in respect of, Investments acquired after February 1, 2016, to the extent such Investment was financed in reliance
on clause (a);
(14) additional
Restricted Payments (a) in an aggregate amount which, when taken together with all other Restricted Payments made pursuant to this
clause (14), do not exceed the greater of (i) $60.0 million and (ii) 2.0% of Total Assets as of the date of the making of such
Restricted Payment and (b) without duplication with clause (a), in an amount equal to the net cash proceeds from any sale or disposition
of, or distribution in respect of, Investments acquired after February 1, 2016, to the extent such Investment was financed
in reliance on clause (a);
(15) any
Restricted Payment; provided that on a pro forma basis after giving effect to such Restricted Payment, the Consolidated Net Leverage
Ratio for the Issuer’s most recently ended four full fiscal quarters for which internal financial statements are available would
be equal to or less than 5.0 to 1.0;
(16) any
Restricted Payment (A) made in connection with the Waste Industries Transactions or used to pay fees and expenses related thereto
or (B) used to fund amounts owed to Affiliates (including dividends to any parent entity to permit payment by such parent entity
of such amount) to the extent permitted by Section 4.8;
(17) the
distribution, by dividend or otherwise, of shares of Capital Stock of, or Indebtedness owed to the Issuer or a Restricted Subsidiary
by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); and
(18) any
Restricted Payments to any direct or indirect parent of the Issuer:
(A) the
proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) operating
costs and expenses of such Persons incurred in the ordinary course of business and other corporate overhead costs and expenses (including
administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in
the ordinary course of business, attributable to the ownership or operations of the Issuer and its Restricted Subsidiaries;
(B) the
proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) franchise
and similar Taxes, and other fees and expenses, required to maintain its (or any of such direct or indirect parent’s) corporate
or legal existence;
(C) to
finance any Investment permitted to be made pursuant to this covenant; provided that (A) such Restricted Payment shall be
made substantially concurrently with the closing of such Investment and (B) such Persons shall, promptly following the closing thereof,
cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Issuer or a Restricted Subsidiary
or (2) the merger, amalgamation, consolidation or sale of all or substantially all assets (to the extent permitted under Section 5.1)
of the Person formed in order to consummate such Investment or acquired pursuant to such Investment, as applicable, into or to, as applicable,
the Issuer or a Restricted Subsidiary;
(D) the
proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses
related to any equity or debt offering permitted by this Indenture (whether or not successful);
(E) the
proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided
on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security
or similar taxes in connection therewith to the extent such salaries, bonuses and other benefits are attributable to the ownership or
operation of the Issuer and its Restricted Subsidiaries or (B) shall be used to make payments permitted under clauses (1), (3),
(8) and (9) (but only to the extent such payments have not been and are not expected to be made by the Issuer or a Restricted
Subsidiary);
(F) the
proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory
pension plan, withholding and other taxes payable and other remittances to governmental authorities in connection with any management
equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment
that would, if made by the Issuer or any Restricted Subsidiary, be permitted under this Indenture;
(G) the
proceeds of which shall be used to pay cash, in lieu of issuing fractional shares, in connection with the exercise of warrants, options
or other securities convertible into or exchangeable for Equity Interests of such Persons; and
(H) for
any taxable period for which the Issuer and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax
group for Tax purposes of which a direct or indirect parent of the Issuer is the common parent (a “Tax Group”), the
proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group
for such taxable period that is attributable to the income of the Issuer and/or its Subsidiaries; provided that (A) the amount
of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that the Issuer and/or its Subsidiaries,
as applicable, would have paid had the Issuer and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone
group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall
be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to the Issuer or any of its Restricted
Subsidiaries for such purpose;
provided,
however, that at the time of, and after giving effect to, any Restricted Payment made in reliance on clause (15), no Default or Event
of Default shall have occurred and be continuing or would occur as a consequence thereof.
For
purposes of determining compliance with this Section 4.4, if a proposed Restricted Payment or Investment (or a portion thereof)
meets the criteria of more than one of the categories described in clauses (1) through (18) above and/or one or more of the clauses
contained in the definition of “Permitted Investments,” or is entitled to be incurred pursuant to Section 4.4(a),
the Issuer may, in its sole discretion, divide and classify (or later reclassify in whole or in part, from time to time in its sole discretion)
such Restricted Payment or Investment (or portion thereof) among such clauses (1) through (18) and such first paragraph and/or one
or more of the clauses contained in the definition of “Permitted Investments,” in any manner that complies with this Section 4.4.
For the purposes of determining compliance with any Canadian dollar or other currency denominated restriction on Restricted Payments
denominated in a foreign currency, the Canadian dollar or other currency-equivalent amount of such Restricted Payment shall be calculated
based on the relevant currency exchange rate in effect on the date that such Restricted Payment was made. Notwithstanding any other provision
of this Section 4.4, the maximum amount of Restricted Payments that the Issuer or any of its Restricted Subsidiaries may
make pursuant to this Section 4.4 shall not be deemed to be exceeded solely as a result of fluctuations in the exchange rate
of currencies.
The
amount of each Restricted Payment (other than cash) will be the Fair Market Value on the date of such Restricted Payment of the assets
or securities proposed to be transferred or issued by the Issuer or such Restricted Subsidiary, as the case may be, pursuant to such
Restricted Payment.
For
the avoidance of doubt, this covenant will not restrict the making of any “AHYDO catch up payment” with respect to, and required
by the terms of, any Indebtedness of the Issuer or any of its Restricted Subsidiaries permitted to be incurred under the terms of this
Indenture.
Section 4.5. Liens.
The
Issuer will not, and will not permit any of the Guarantors to, directly or indirectly, create, incur, assume or otherwise cause or suffer
to exist or become effective any Lien upon or with respect to any of their property or assets, now owned or hereafter acquired, securing
Indebtedness, unless:
(1) in
the case of Liens on any Collateral:
(A) such
Lien expressly has a Junior Lien Priority on the Collateral relative to the Notes and the Note Guarantees; or
(B) such
Lien is a Permitted Lien; and
(2) in
the case of Liens on property or assets that are not Collateral:
(A) in
the case of Liens securing Subordinated Indebtedness, the Notes and the Note Guarantees are secured by a Lien on such property or assets
that is senior in priority to such Liens (for as long as such Indebtedness is so secured);
(B) in
all other cases, the Notes and the Note Guarantees are secured by a Lien on such property or assets equally and ratably with the obligation
or liability secured by such Liens (for as long as such Indebtedness is so secured); or
(C) such
Lien is a Permitted Lien.
Section 4.6. Dividend
and Other Payment Restrictions Affecting Restricted Subsidiaries.
(a) The
Issuer will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become
effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay
dividends or make any other distributions on its Capital Stock to the Issuer or any of its Restricted Subsidiaries or pay any Indebtedness
owed to the Issuer or any of its Restricted Subsidiaries; provided that the priority of any preferred stock over common stock
in receiving dividends or distributions (upon a liquidation or otherwise) shall not be deemed a restriction on the ability to make distributions
on Capital Stock;
(2) make
loans or advances to the Issuer or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances
made to the Issuer or any of its Restricted Subsidiaries to other Indebtedness incurred by the Issuer or any of its Restricted Subsidiaries
will not be deemed a restriction on the ability to make loans or advances); or
(3) sell,
lease or transfer any of its properties or assets to the Issuer or any of its Restricted Subsidiaries.
(b) However,
the preceding restrictions will not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements
or instruments (including agreements governing Existing Indebtedness or Credit Facilities) as in effect or which came into effect on
the Issue Date;
(2) this
Indenture, the Notes and the Note Guarantees;
(3) applicable
law, rule, regulation, order, approval, license or permit;
(4) any
agreement or instrument governing Indebtedness or Capital Stock of a Person acquired by the Issuer or any of its Restricted Subsidiaries
as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred or issued in connection
with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or
assets of any Person, other than the Person, or the property or assets of the Person, so acquired; provided that, in the case
of Indebtedness or Disqualified Stock, such Indebtedness or Disqualified Stock was permitted by the terms of this Indenture to be incurred
or issued, as the case may be;
(5) customary
non-assignment and non-subletting provisions in contracts, leases and licenses entered into in the ordinary course of business;
(6) agreements
relating to Purchase Money Obligations, Financing Lease Obligations and Sale/Leaseback Transactions that impose restrictions on the property
relating thereto of the nature described Section 4.6(a)(3);
(7) any
agreement for the sale or other disposition of assets or Capital Stock of a Restricted Subsidiary of the Issuer that restricts transfers
of such assets or the making by that Restricted Subsidiary of distributions, loans or advances pending such sale or other disposition;
(8) Permitted
Liens that limit the right of the debtor to dispose of the assets subject to such Liens;
(9) provisions
in joint venture agreements, partnership agreements, limited liability company agreements, asset sale agreements, stock sale agreements
and other similar agreements entered into in the ordinary course of business or with the approval of the Board of Directors of the Issuer
or the applicable Restricted Subsidiary of the Issuer, that limit the disposition or distribution of assets or property, which limitations
are applicable only to the assets that are the subject of such agreements (including restrictions on the transfer of ownership interests
in any joint venture, partnership, limited liability company or other applicable entity);
(10) restrictions
on cash, Cash Equivalents or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of
business;
(11) encumbrances
and restrictions contained in contracts entered into in the ordinary course of business, not relating to any Indebtedness, and that do
not, individually or in the aggregate, detract from the value of, or from the ability of the Issuer and any of its Restricted Subsidiaries
to realize the value of, property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer or any Restricted
Subsidiary;
(12) agreements
encumbering or restricting cash or marketable securities to secure Hedging Obligations;
(13) agreements
governing Indebtedness permitted to be incurred under Section 4.3; provided that the Issuer determines in good faith,
on the date of incurrence thereof, that the restrictions therein will not materially adversely impact the ability of the Issuer to make
required principal and interest payments on the Notes;
(14) Permitted
Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness
are not materially more restrictive (taken as a whole), than those contained in the agreements governing the Indebtedness being refinanced;
and
(15) any
amendments, restatements, renewals, increases, supplements, refundings, replacements or refinancings (collectively, “refinancings”)
of the agreements, instruments or obligations referred to in clauses (1) through (14) above; provided that such refinancings
are not materially more restrictive (taken as a whole) with respect to such encumbrances and restrictions than those in effect prior
to such refinancings, as determined in good faith by the Issuer.
Section 4.7. Asset
Sales.
(a) The
Issuer will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale in any single transaction or series
of related transactions unless:
(1) the
Issuer (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the
Fair Market Value (measured as of the date of the definitive agreement relating to such Asset Sale) of the assets, properties or Equity
Interests issued, sold or otherwise disposed of in such Asset Sale;
(2) at
least 75% of the consideration received for such Asset Sale (measured at the time of contractually agreeing to such Asset Sale), together
with all Asset Sales since February 1, 2016 (on a cumulative basis) received by the Issuer and its Restricted Subsidiaries in the
manner referred to in clause (a)(1) above is in the form of cash, Cash Equivalents, or Permitted Assets. For purposes of this provision,
each of the following will be deemed to be cash:
(A) any
liabilities of the Issuer or any Restricted Subsidiary (other than contingent liabilities or liabilities that are by their terms subordinated
to the Notes or any Note Guarantee), as shown on the Issuer’s most recent internally available annual or quarterly balance sheet,
that are (i) assumed by the transferee of any such assets pursuant to a customary novation agreement or similar agreement that releases
the Issuer or such Restricted Subsidiary from further liability or (ii) otherwise canceled;
(B) any
securities, notes or other obligations (including earn-outs and similar obligations) received by the Issuer or any such Restricted Subsidiary
from such transferee that are, within 180 days of the applicable Asset Sale, converted by the Issuer or such Restricted Subsidiary into
cash or Cash Equivalents, to the extent of the cash or Cash Equivalents received in that conversion;
(C) Indebtedness
of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Sale, to the extent that the Issuer
and its other Restricted Subsidiaries are released from any guarantee of payment of such Indebtedness in connection with the Asset Sale;
and
(D) any
Designated Non-cash Consideration received by the Issuer or any Restricted Subsidiary in such Asset Sale having an aggregate Fair Market
Value (with the Fair Market Value of such item of Designated Non-cash Consideration being measured at the time of contractually agreeing
to the related Asset Sale), taken together with all other Designated Non-cash Consideration received pursuant to this clause (D) that
is at that time outstanding, not to exceed the greater of (i) $90.0 million and (ii) 3.0% of Total Assets measured at the time
of contractually agreeing to such Asset Sale.
(b) Within
455 days after the receipt of any Net Proceeds from an Asset Sale (or, at the Issuer’s option, any earlier date), the Issuer or
any Restricted Subsidiary may apply those Net Proceeds for any combination of the following purposes:
(1) to
the extent such Net Proceeds are from an Asset Sale of Collateral to Repay (a) Obligations under the Notes or (b) First Lien
Obligations (other than the Notes), and in the case of revolving obligations (other than obligations in respect of any asset-backed credit
facility), to correspondingly reduce commitments with respect thereto; provided that in the case of any repayment pursuant to
this clause (b), the Issuer or such Restricted Subsidiary will either (1) reduce obligations under the Notes on an equal or ratable
basis with any First Lien Obligations repaid pursuant to this clause (b) by, at its option (A) redeeming Notes as described
in Section 3.7 or (B) purchasing Notes through open-market purchases or in arm’s length privately negotiated transactions
or (2) make an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders to purchase their
Notes for no less than 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, thereon, to, but
excluding, the date of Purchase;
(2) if
the assets that are the subject of such Asset Sale do not constitute Collateral:
(A) to
Repay Indebtedness under the First Lien Term Loan Credit Agreement, the First Lien Revolving Credit Agreement and/or any other Indebtedness
that is secured by a Lien (other than any such Indebtedness that is subordinate in right of payment to the Notes or any Note Guarantee);
(B) to
Repay (a) obligations under the Notes, (b) other Pari Passu Indebtedness; provided that if the Issuer or any Guarantor
shall so reduce obligations under other Pari Passu Indebtedness pursuant to this clause (b), the Issuer will equally and ratably reduce
obligations in respect of the Notes pursuant to Section 3.7 or through open-market purchases (which may be below par) or
by making an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders to purchase at a purchase
price equal to 100% of the principal amount thereof (or, in the event that the Notes were issued with significant original issue discount,
100% of the accreted value thereof), plus accrued and unpaid interest on the pro rata principal amount of Notes or (c) Indebtedness
of a Restricted Subsidiary that is not a Guarantor, in each case other than Indebtedness owed to the Issuer or a Restricted Subsidiary
of the Issuer;
(3) to
acquire all or substantially all of the assets of, or to acquire Capital Stock of, a Person that is engaged in a Permitted Business and
that, in the case of an acquisition of Capital Stock, is or becomes a Restricted Subsidiary of the Issuer;
(4) to
make a capital expenditure; or
(5) to
acquire other assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business or that
replace, in whole or in part, the properties or assets that are subject to the Asset Sale.
Notwithstanding
the foregoing, in the event the Issuer or any of its Restricted Subsidiaries enters into a binding agreement committing to make an acquisition,
expenditure or investment in compliance with clauses (3), (4) or (5) above within 455 days after the receipt of any Net Proceeds
from an Asset Sale (an “Acceptable Commitment”), such commitment will be treated as a permitted application of the
Net Proceeds from the date of the execution of such agreement until the earlier of (i) the date on which such acquisition or investment
is consummated or such expenditure made or such agreement is terminated, and (ii) the 180th day after the expiration of the aforementioned
455-day period; provided that if any Acceptable Commitment is later canceled or terminated for any reason before such Net Proceeds
are applied, then such Net Proceeds shall constitute Excess Proceeds from and after the date of such cancelation or termination; unless
the Issuer or such Restricted Subsidiary enters into another Acceptable Commitment within 180 days of such cancellation or termination
(a “Second Commitment”) in which case such commitment will be treated as a permitted application of the Net Proceeds
from the date of the execution of such agreement until the earlier of (i) the date on which such acquisition or investment is consummated
or such expenditure made or such agreement is terminated, and (ii) the 180th day after the date of the Second Commitment.
Pending
the final application of any Net Proceeds, the Issuer may temporarily reduce revolving credit borrowings or otherwise invest the Net
Proceeds in any manner that is not prohibited by this Indenture.
(c) Any
Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.7(b) (it being understood that
any portion of such Net Proceeds used to make an offer to purchase Notes, as described in Section 4.7(b), will be deemed to have
been so applied whether or not such offer is accepted) will constitute “Excess Proceeds.”
(d) If
the aggregate amount of Excess Proceeds from an Asset Sale of Collateral (a “Collateral Asset Sale”, and such Excess
Proceeds, “Collateral Excess Proceeds”) exceeds $60.0 million, the Issuer will make a pro rata offer to all Holders
of Notes (and, if required or permitted by the terms of other First Lien Obligations or obligations secured by a Lien permitted under
this Indenture on the assets disposed of, which Lien is not subordinate to the Lien of the Notes with respect to the Collateral), to
the holders of such other First Lien Obligations or such other obligations (a “Collateral Asset Sale Offer”), to purchase
the maximum aggregate principal amount (or accreted value, as applicable) of Notes and such other First Lien Obligations or such other
obligations, as the case may be, that may be purchased out of the Excess Proceeds. The offer price, with respect to the Notes only, in
any Collateral Asset Sale Offer will be equal to 100% of the principal amount (or accreted value in the case of any such First Lien Obligations
or such other Obligations, as the case may be, issued with a significant original issue discount) plus accrued and unpaid interest, if
any, to, but excluding, the date of purchase, and will be payable in cash. If the aggregate principal amount of Notes and other First
Lien Obligations or such other obligations, as the case may be, tendered into such Collateral Asset Sale Offer exceeds the amount of
Excess Proceeds, the Trustee will select the Notes and such other First Lien Obligations or such other obligations, as the case may be,
to be purchased on a pro rata basis (subject to the procedures of the relevant depositary), on the basis of the aggregate principal amounts
(or accreted values) tendered in round denominations (which, in the case of the Notes, will be minimum denominations of US$2,000 principal
amount and multiples of US$1,000 in excess thereof). If any Excess Proceeds remain after consummation of a Collateral Asset Sale Offer,
(and assuming no “Asset Sale Offer” (as defined in the next paragraph) is required) the Issuer may use those Excess Proceeds
for any purpose not otherwise prohibited by this Indenture. Upon completion of each Collateral Asset Sale Offer, the amount of Collateral
Excess Proceeds will be reset at zero. The Issuer may satisfy the foregoing obligations with respect to such Net Proceeds from a Collateral
Asset Sale by making a Collateral Asset Sale Offer with respect to such Net Cash Proceeds at any time prior to the expiration of the
application period or by electing to make a Collateral Asset Sale Offer with respect to such Net Proceeds before the aggregate amount
of Collateral Excess Proceeds exceeds $60.0 million.
(e) If
the aggregate amount of Excess Proceeds from an Asset Sale of Non-Collateral exceeds $60.0 million, the Issuer will make a pro rata offer
(an “Asset Sale Offer”) to all Holders of Notes (and, at the option of the Issuer, to holders of any Pari Passu Indebtedness)
to purchase the maximum principal amount of Notes and such Pari Passu Indebtedness, as the case may be, that may be purchased out of
the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount (or accreted value in the
case of any such Pari Passu Indebtedness, as the case may be, issued with a significant original issue discount) plus accrued and unpaid
interest, if any, to the date of purchase, and will be payable in cash. If the aggregate principal amount of Notes and Pari Passu Indebtedness,
as the case may be, tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee will select the Notes and
such Pari Passu Indebtedness, as the case may be, to be purchased on a pro rata basis (subject to the procedures of the relevant depositary),
on the basis of the aggregate principal amounts (or accreted values) tendered in round denominations (which in the case of the Notes
will be minimum denominations of US$2,000 principal amount and multiples of US$1,000 in excess thereof). If any Excess Proceeds remain
after consummation of an Asset Sale Offer, the Issuer may use those Excess Proceeds for any purpose not otherwise prohibited by this
Indenture. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Issuer may satisfy the
foregoing obligations with respect to such Net Proceeds from an Asset Sale by making an Asset Sale Offer with respect to such Net Cash
Proceeds at any time prior to the expiration of the application period or by electing to make an Asset Sale Offer with respect to such
Net Proceeds before the aggregate amount of Excess Proceeds exceeds $60.0 million.
(f) Within
30 days following the date when the Issuer becomes obligated to make an Asset Sale Offer, the Issuer will mail (or in the case of Global
Notes deliver electronically in accordance with the procedures of the Depositary) a notice to each Holder describing the transaction
or transactions that constitute the Asset Sale and offering to repurchase Notes on the date (the “Asset Sale Payment Date”)
specified in such notice, which date will be no earlier than 30 days nor later than 60 days from the date such notice is mailed, pursuant
to the procedures required by this Indenture and described in such notice.
(g) On
the Asset Sale Payment Date, the Issuer will, to the extent lawful:
(1) accept
for payment all Notes or portions thereof properly tendered pursuant to the Asset Sale Offer, subject to proration based on the amount
of Excess Proceeds pursuant to Section 4.7(c);
(2) deposit
with the Paying Agent an amount equal to the amount of Excess Proceeds that, after giving effect to proration with holders of pari passu
Indebtedness pursuant to Section 4.7(c), is allocable to the Notes or portions thereof so tendered (or, if less, the aggregate
payment for all Notes validly tendered and not withdrawn); and
(3) deliver
or cause to be delivered to the Trustee the Notes so accepted together with an Officer’s Certificate stating the aggregate principal
amount of Notes or portions thereof being purchased by the Issuer.
(h) The
Paying Agent will promptly mail (or cause to be transferred through the facilities of the Depositary) to each Holder of Notes accepted
for payment in accordance with this Section 4.7, the payment for such tendered Notes, and the Trustee will, upon receipt
of an Issuer Order, promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal
amount to any unpurchased portion of the Notes surrendered, if any, by such Holder; provided that each such new Note will be in
a principal amount of US$1,000 or an integral multiple thereof.
(i) To
the extent that the aggregate amount of Notes and such other First Lien Obligations or Notes Obligations secured by a Lien permitted
under this Indenture (which Lien is not subordinate to the Lien of the Notes with Respect to the Collateral) tendered or otherwise surrendered
in connection with a Collateral Asset Sale Offer made with Excess Proceeds is less than the amount offered in a Collateral Asset Sale
Offer, the Issuer may use any remaining Excess Proceeds (any such amount, “Collateral Retained Declined Proceeds”)
for any purpose not otherwise prohibited by this Indenture.
(j) To
the extent that the aggregate amount of Notes and any other Pari Passu Indebtedness tendered or otherwise surrendered in connection with
an Asset Sale Offer made with Excess Proceeds is less than the amount offered in an Asset Sale Offer, the Issuer may use any remaining
Excess Proceeds (any such amount, together with the Collateral Retained Declined Proceeds, “Retained Declined Proceeds”)
for any purpose not otherwise prohibited by this Indenture.
(k) If
the Collateral Asset Sale Offer Purchase Date is after the taking of a record of the Holders on a Record Date and on or before the related
Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a purchased Note is registered on such
Record Date, and no other interest will be payable to Holders who tender Notes pursuant to the Collateral Asset Sale Offer.
(l) If
the Asset Sale Offer Purchase Date is after the taking of a record of the Holders on a Record Date and on or before the related Interest
Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a purchased Note is registered on such Record
Date, and no other interest will be payable to Holders who tender Notes pursuant to the Asset Sale Offer.
(m) The
Issuer will comply with all applicable securities legislation of Canada and the United States, including, without limitation, the requirements
of Rule 14e-1 under the 1934 Act and any other applicable securities laws and regulations thereunder to the extent those laws and
regulations are applicable in connection with each repurchase of Notes pursuant to a Collateral Asset Sale Offer or an Asset Sale Offer.
To the extent that the provisions of any applicable securities laws and regulations conflict with this Section 4.7, the Issuer
will comply with such laws and regulations and will not be deemed to have breached its obligations under this Section 4.7
by virtue of such compliance.
(n) The
Issuer’s obligation to make a Collateral Asset Sale Offer or an Asset Sale Offer may be waived or modified before or after the
occurrence of an Asset Sale with the written consent of Holders of at least a majority in principal amount of the Notes then outstanding.
Notwithstanding the foregoing, any sale, assignment, transfer, conveyance, lease or other disposition of all or substantially all of
the properties or assets of the Issuer and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another
Person, will be governed by Section 5.1 and will not be subject to the provisions described above in this Section 4.7.
Section 4.8. Transactions
With Affiliates.
(a) The
Issuer will not, and will not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise
dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction,
contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Issuer (each, an “Affiliate
Transaction”) involving aggregate consideration in excess of $20.0 million for any Affiliate Transaction or series of related
Affiliate Transactions, unless:
(1) the
Affiliate Transaction is on terms that are no less favorable in the aggregate to the Issuer or the relevant Restricted Subsidiary, as
the case may be, than those that would reasonably be expected to have been obtained in a comparable transaction at such time by the Issuer
or such Restricted Subsidiary, as the case may be, in an arm’s-length dealing with a Person who is not an Affiliate of the Issuer
or the relevant Restricted Subsidiary, as the case may be; and
(2) with
respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $40.0
million, the Issuer delivers to the Trustee a resolution of the Board of Directors of the Issuer set forth in an Officer’s Certificate
certifying that such Affiliate Transaction or series of Affiliate Transactions, as the case may be, complies with this Section 4.8
and that such Affiliate Transaction or series of Affiliate Transactions, as the case may be, has been approved in good faith by a
majority of the members of the Board of Directors of the Issuer.
(b) The
following items will be deemed not to be Affiliate Transactions and therefore will not be subject to the provisions of Section 4.8(a) hereof:
(1) any
consulting or employment agreement or arrangement, employee or director compensation, stock option, bonus, benefit or other similar plan,
officer or director indemnification, insurance, severance or expense reimbursement arrangement, or any similar arrangement existing on
the Issue Date or thereafter entered into by the Issuer or any of its Restricted Subsidiaries in the ordinary course of business and
payments and other benefits (including bonuses and retirement, severance, health, stock option, restricted share, stock appreciation
right, phantom right, profit interest, equity incentive and other benefit plans) pursuant thereto;
(2) (i) transactions
between or among the Issuer and/or its Restricted Subsidiaries (or an entity that becomes a Restricted Subsidiary as a result of such
transaction) and (ii) any merger or consolidation of the Issuer or any other direct or indirect parent of the Issuer; provided
that such parent entity shall have no material liabilities and no material assets (other than cash, Cash Equivalents and the Capital
Stock of the Issuer) and such merger or consolidation is otherwise in compliance with the terms of this Indenture and effected for a
bona fide business purpose;
(3) transactions
in which the Issuer or any of its Restricted Subsidiaries, as the case may be, delivers to the Trustee a letter from an Independent Financial
Advisor stating that such transaction is fair to the Issuer or such Restricted Subsidiary from a financial point of view or meets the
requirements of Section 4.8(a)(1);
(4) payments,
loans, advances or guarantees (or cancellation of loans, advances or guarantees) to employees, officers, directors, managers, consultants
or independent contractors for bona fide business purposes or in the ordinary course of business;
(5) the
issuance or sale of Capital Stock (other than Disqualified Stock) of the Issuer or warrants, options or other rights to acquire Capital
Stock (other than Disqualified Stock) of the Issuer to, or the receipt by the Issuer of any capital contribution from, its shareholders
or Affiliates;
(6) Restricted
Payments that are permitted by Section 4.4 and Permitted Investments (except for Investments made in reliance on clauses
(3), (5) and (6) of the definition of Permitted Investments);
(7) any
agreement or arrangement described in the Offering Memorandum and to which the Issuer or any of its Restricted Subsidiaries is a party
as of or on the Issue Date, or as such agreement or arrangement is thereafter amended, supplemented or replaced (so long as such amendment,
supplement or replacement agreement or arrangement is not materially disadvantageous (as determined in good faith by the Issuer or any
direct or indirect parent of the Issuer) to the holders of the Notes when taken as a whole as compared to the original agreement or arrangement
as in effect on the Issue Date) or any transaction or payments contemplated thereby;
(8) transactions
with customers, suppliers or purchasers or sellers of goods or services that are Affiliates of the Issuer, in each case in the ordinary
course of business and which, in the reasonable determination of the Board of Directors of the Issuer are on terms at least as favorable
to the Issuer as would reasonably have been obtained at such time from an unaffiliated party;
(9) transactions
between the Issuer or any of its Restricted Subsidiaries and any Person that is an Affiliate solely because one or more of its directors
or officers is also a director or officer of the Issuer; provided that such director abstains from voting as a director of the
Issuer on any such transaction involving such other Person;
(10) any
transaction with a Person (other than an Unrestricted Subsidiary) that would constitute an Affiliate Transaction solely because the Issuer
or a Restricted Subsidiary owns an Equity Interest in or otherwise controls such Person; provided that no Affiliate of the Issuer
or any of its Subsidiaries (other than the Issuer or a Restricted Subsidiary) shall have a beneficial interest or otherwise participate
in such Person;
(11) a
repurchase of Notes held by an Affiliate of the Issuer if repurchased on the same terms as have been offered to all Holders that are
not Affiliates of the Issuer;
(12) payments
by the Issuer and any of the Restricted Subsidiaries made for any transaction or financial advisory, financing, underwriting or placement
services or in respect of other investment banking activities (including in connection with financings, acquisitions or divestitures),
which payments are approved by a majority of the disinterested members of the board of directors (or comparable governing body or managers)
of the Issuer in good faith (which, for the avoidance of doubt, may include payments to Affiliates of a Permitted Holder);
(13) investments
by Affiliates in Indebtedness or preferred Equity Interests of the Issuer or any of its Subsidiaries, so long as non-Affiliates were
also offered the opportunity to invest in such Indebtedness or preferred Equity Interests, and transactions with Affiliates solely in
their capacity as holders of Indebtedness or preferred Equity Interests of the Issuer or any of its Subsidiaries, so long as such transaction
is with all holders of such class (and there are such non-Affiliate holders) and such Affiliates are treated no more favorably than all
other holders of such class generally;
(14) intercompany
transactions undertaken in good faith for the purpose of improving the consolidated tax efficiency of the Issuer and its Restricted Subsidiaries
and not for the purpose of circumventing any covenant set forth in this Indenture; and
(15) the
entering into of any tax sharing agreement or arrangement that complies with Section 4.4(c)(18)(H) and the performance
under any such agreement or arrangement.
Section 4.9. Issuance
of Note Guarantees.
(a) The
Issuer will cause each Material Restricted Subsidiary that is not a Guarantor and that guarantees the obligations under the First Lien
Term Loan Credit Agreement to become a Guarantor, execute and deliver a supplemental indenture in the form of Exhibit D and
joinders to the Collateral Documents or new Collateral Documents together with any other filings and other agreements required by the
Collateral Documents to create or perfect the security interests for the benefit of the Notes Secured Parties in the Collateral of such
Subsidiary, and deliver an Officer’s Certificate and Opinion of Counsel reasonably satisfactory to the Trustee, in each case within
30 days of the date on which such Material Restricted Subsidiary was acquired, created, qualified, designated or guaranteed the obligations
under the First Lien Term Loan Credit Agreement, as applicable. Thereafter, such Restricted Subsidiary will be a Guarantor for all purposes
of this Indenture, subject to Article X.
Section 4.10. Designation
of Restricted and Unrestricted Subsidiaries.
(a) The
Board of Directors of the Issuer may designate any Restricted Subsidiary to be an Unrestricted Subsidiary; provided that:
(1) immediately
after and giving effect to such designation, no Default or Event of Default shall have occurred and be continuing;
(2) at
the time of the designation, the Issuer and its Restricted Subsidiaries could make a Restricted Payment in an amount equal to the Fair
Market Value of the Subsidiary so designated in compliance with Section 4.4;
(3) at
the time of such designation, to the extent that any Indebtedness of the Subsidiary so designated is not Non-Recourse Debt, any guarantee
or other credit support thereof by the Issuer or any of its Restricted Subsidiaries could be incurred at such time in compliance with
Section 4.3 and Section 4.4;
(4) such
Subsidiary is not party to any agreement, contract, arrangement or understanding with the Issuer or any Restricted Subsidiary unless
any such agreement, contract, arrangement or understanding would, immediately after giving effect to such designation, be permitted by
Section 4.8; and
(5) such
Subsidiary is a Person with respect to which neither the Issuer nor any of its Restricted Subsidiaries has any direct or indirect obligation
(a) to subscribe for additional Equity Interests or (b) to maintain or preserve such Person’s financial condition or
to cause such Person to achieve any specified levels of operating results unless such obligation could be performed by the Issuer in
compliance with Section 4.4 (and the maximum amount of such obligation shall be deemed to be an Investment by the Issuer
for purposes of Section 4.4).
Any
designation of a Restricted Subsidiary of the Issuer as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the
Trustee a certified copy of the resolutions of the Board of Directors of the Issuer giving effect to such designation and an Officer’s
Certificate certifying that such designation complied with the preceding conditions. If, at any time, any Unrestricted Subsidiary would
fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for
purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary as of such
date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.3, the Issuer will be in default
of Section 4.3.
(b) The
Board of Directors of the Issuer may designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that:
(1) immediately
after and giving effect to such designation, no Default or Event of Default shall have occurred and be continuing;
(2) such
designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of any outstanding Indebtedness of such Unrestricted
Subsidiary, and such designation will only be permitted if such Indebtedness is permitted under Section 4.3;
(3) the
aggregate Fair Market Value of all outstanding Investments owned by the Unrestricted Subsidiary so designated will be deemed to be an
Investment made as of the time of the designation and any such designation will only be permitted if the Investment would be permitted
at that time in compliance with Section 4.4;
(4) all
Liens upon property and assets of such Unrestricted Subsidiary existing at the time of such designation would be permitted under Section 4.5;
and
(5) such
Unrestricted Subsidiary becomes a Guarantor pursuant to Section 4.9.
Section 4.11. Change
of Control.
(a) If
a Change of Control occurs, unless, prior to, or concurrently with, the time the Issuer is required to make a Change of Control Offer
(as defined below), the Issuer has previously or concurrently mailed or delivered, or otherwise sent through electronic transmission,
a redemption notice with respect to all the outstanding Notes as described under Section 3.7 or Article VIII,
the Issuer will make an offer to purchase all of the Notes pursuant to the offer described below (the “Change of Control Offer”)
at a price in cash (the “Change of Control Payment”) equal to 101% of the aggregate principal amount thereof (or such
higher amount as the Issuer may determine) plus accrued and unpaid interest, if any, to, but excluding, the date of purchase, subject
to the right of Holders of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date falling on
or prior to the Change of Control Payment Date (as defined below). Within 30 days following any Change of Control, the Issuer will send
notice of such Change of Control Offer electronically or by first-class mail, with a copy to the Trustee sent in the same manner, to
each Holder to the address of such Holder appearing in the security register or otherwise in accordance with the procedures of DTC, with
the following information:
(1) that
a Change of Control Offer is being made pursuant to Section 4.11 and that all Notes properly tendered pursuant to such Change
of Control Offer will be accepted for payment by the Issuer;
(2) the
purchase price and the purchase date, which will be no earlier than 10 days nor later than 60 days from the date such notice is sent
(the “Change of Control Payment Date”); provided that the Change of Control Payment Date may be delayed, in
the Issuer’s discretion, until such time (including more than 60 days after the date such notice. is sent) as any or all such conditions
referred to in Section 4.11(a)(8) shall be satisfied or waived;
(3) that
any Note not properly tendered will remain outstanding and continue to accrue interest;
(4) that,
unless the Issuer defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of
Control Offer will cease to accrue interest on the Change of Control Payment Date;
(5) that
Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender such Notes, with the
form entitled “Option of Holder to Elect Purchase” on the reverse of such Notes completed or otherwise in accordance with
the procedures of DTC, to the paying agent specified in the notice at the address specified in the notice prior to the close of business
on the third Business Day preceding the Change of Control Payment Date;
(6) that
Holders will be entitled to withdraw their tendered Notes and their election to require the Issuer to purchase such Notes; provided
that the paying agent receives, not later than the close of business on the second Business Day prior to the expiration time of the
Change of Control Offer, an electronic transmission (in PDF), a facsimile transmission or letter setting forth the name of the Holder
or otherwise in accordance with the procedures of DTC, the principal amount of the Notes tendered for purchase, and a statement that
such Holder is withdrawing its tendered Notes and its election to have such Notes purchased;
(7) that
if less than all of such Holder’s Notes are tendered for purchase, such Holder will be issued new Notes and such new Notes will
be equal in principal amount to the unpurchased portion of the Notes surrendered; provided that the unpurchased portion of the
Notes must be equal to at least US$2,000 or an integral multiple of US$1,000 in excess of US$2,000;
(8) if
such notice is sent prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence
of such Change of Control and describing each such condition, and, if applicable, stating that, in the Issuer’s discretion, the
Change of Control Payment Date may be delayed until such time as any or all such conditions shall be satisfied or waived, or that such
purchase may not occur and such notice may be rescinded in the event that the Issuer shall determine that any or all such conditions
shall not have been satisfied or waived by the Change of Control Payment Date, or by the Change of Control Payment Date as so delayed;
and
(9) such
other instructions, as determined by the Issuer, consistent with this covenant, that a Holder must follow.
(b) While
the Notes are in global form and the Issuer makes an offer to purchase all of the Notes pursuant to the Change of Control Offer, a Holder
may exercise its option to elect for the purchase of Notes through the facilities of DTC, subject to its rules and regulations.
(c) The
Issuer will comply with all applicable securities legislation in Canada and the United States including, without limitation, the requirements
of Rule 14e-1 under the 1934 Act and any other securities laws and regulations thereunder to the extent those laws and regulations
are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of
any applicable securities laws and regulations conflict with the provisions of Section 4.11, the Issuer will comply with
such laws and regulations and will not be deemed to have breached its obligations under this Section 4.11 by virtue of such
compliance.
(d) On
the Change of Control Payment Date, the Issuer or its designated agent will, to the extent lawful:
(1) accept
for payment all Notes or portions of Notes properly tendered pursuant to the Change of Control Offer;
(2) deposit
with the paying agent an amount equal to the Change of Control Payment in respect of all Notes or portions of Notes properly tendered;
and
(3) deliver
or cause to be delivered to the Trustee the Notes accepted together with an Officer’s Certificate stating the aggregate principal
amount of Notes or portions of Notes being purchased by the Issuer.
(e) On
the Change of Control Payment Date, the paying agent will promptly transmit to each Holder of Notes properly tendered and not withdrawn
the Change of Control Payment for such tendered Notes, and the Trustee, upon an order of the Issuer, will promptly authenticate and mail
(or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes
surrendered, if any; provided that each new Note will be in a principal amount that is US$2,000 or an integral multiple of US$1,000
in excess thereof. The Issuer will publicly announce the results of the Change of Control Offer on or as soon as practicable after the
Change of Control Payment Date.
(f) If
the Change of Control Payment Date is on or after a Record Date and on or before the related Interest Payment Date, any accrued and unpaid
interest will be paid to the Person in whose name a Note is registered at the close of business on such Record Date, and no other interest
will be payable to Holders who tender pursuant to the Change of Control Offer.
(g) The
provisions described above that require the Issuer to make a Change of Control Offer following a Change of Control will be applicable
whether or not any other provisions of this Indenture are applicable. Except as described above with respect to a Change of Control,
this Indenture does not contain provisions that permit the Holders to require that the Issuer repurchase or redeem the Notes in the event
of a takeover, recapitalization or similar transaction.
(h) Notwithstanding
the preceding paragraphs of this Section 4.11, the Issuer will not be required to make a Change of Control Offer upon a Change
of Control if a third party makes an offer to purchase the Notes in the manner, at the times and otherwise in substantial compliance
with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes
validly tendered and not withdrawn under such Change of Control Offer, or a notice of redemption has been given pursuant to Section 3.7,
unless and until there is a default in payment of the applicable redemption price. Notwithstanding anything to the contrary contained
herein, a Change of Control Offer by the Issuer or a third party may be made in advance of a Change of Control, conditioned upon the
consummation of such Change of Control, if a definitive agreement is in place for the Change of Control at the time the Change of Control
Offer is made.
(i) In
the event that Holders of not less than 90% of the aggregate principal amount of the outstanding Notes validly tender and do not withdraw
such Notes in a Change of Control Offer, Collateral Asset Sale Offer, Asset Sale Offer or other tender offer and the Issuer (or a third
party making the offer as described above) purchases all of the Notes validly tendered and not withdrawn by such Holders, the Issuer
or third party offeror, as applicable, will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not
more than 30 days following the purchase pursuant to such offer described above, to redeem (in the case of the Issuer) or purchase (in
the case of a third party offeror) all of the Notes that remain outstanding following such purchase at a redemption price or purchase
price, as the case may be, equal to the price paid to each other Holder in such offer (which may be less than par) plus, to the extent
not included in such price, accrued and unpaid interest on the Notes that remain outstanding, to, but excluding, the date of redemption
(subject to the right of Holders of record on the relevant Record Date to receive interest due on an Interest Payment Date that is on
or prior to the redemption date).
The
Issuer’s obligation to make a Change of Control Offer following a Change of Control may be waived or modified before or after the
occurrence of such Change of Control with the written consent of Holders of at least a majority in aggregate principal amount of the
Notes then outstanding.
Section 4.12. Maintenance
of Office or Agency for Registration of Transfer, Exchange and Payment of Notes.
So
long as any of the Notes shall remain outstanding, the Issuer will, in accordance with Section 2.2 hereof, maintain an office
or agency (which may be an office of the Trustee or an affiliate of the Trustee, or the Registrar) in the continental U.S. where the
Notes may be surrendered for exchange or registration of transfer and where the Notes may be presented or surrendered for payment. If
the Issuer shall fail to maintain any such office or agency or shall fail to give such notice of the location or of any change in the
location thereof, such surrenders or presentations may be made at the designated Corporate Trust Office, and the Issuer hereby appoints
the Trustee its agent to receive at the aforesaid office all such surrenders or presentations. The Issuer may also from time to time
designate one or more other offices or agencies in the continental U.S. where Notes may be presented or surrendered for any and all such
purposes and may from time to time rescind such designations. The Issuer will give to Trustee prompt written notice of the location of
any such office or agency and of any change of location thereof.
Section 4.13. Appointment
to Fill a Vacancy in the Office of Trustee.
The
Issuer, whenever necessary to avoid or fill a vacancy in the office of trustee under this Indenture, will appoint, in the manner provided
in Section 7.7, a trustee, so that there shall at all times be a trustee hereunder.
Section 4.14. Provision
as to Paying Agent.
(a) If
the Issuer will appoint a Paying Agent other than the Trustee, in accordance with the terms of this Indenture, it will cause such Paying
Agent to execute and deliver to the Trustee an instrument in which such Agent shall undertake, subject to the provisions of this Section 4.14:
(1) that
it will hold all sums held by it as such agent for the payment of the principal of, premium, if any, or interest on the Notes (whether
such sums have been paid to it by the Issuer or by any other obligor on the Notes) in trust for the benefit of the Holders of the Notes
and will notify the Trustee of the receipt of sums to be so held;
(2) that
it will give the Trustee notice of any failure by the Issuer (or by any other obligor on the Notes) to make any payment of the principal
of, premium, if any, or interest on the Notes when the same shall be due and payable;
(3) that
it will at any time during the continuance of any Event of Default specified in Section 6.1, upon the written request of
the Trustee, deliver to the Trustee all sums so held in trust by it; and
(4) that
it will acknowledge, accept and agree to comply in all aspects with the provisions of this Indenture relating to the duties, rights and
liabilities of such Paying Agent.
(b) If
the Issuer shall not act as its own Paying Agent, it will, by 11:00 a.m. (New York City time) on the due date of the principal of
or premium, if any, or interest on any Notes, deposit with such Paying Agent a sum in same day funds sufficient to pay the principal
of, premium, if any, or interest so becoming due, such sum to be held in trust for the benefit of the Trustee and the Holders of Notes
entitled to such principal of or premium, if any, or interest, and (unless such Paying Agent is the Trustee) the Issuer will promptly
notify the Trustee of its failure so to act.
(c) If
the Issuer shall act as its own Paying Agent, it will, by 11:00 a.m., (New York City time) on each due date of the principal of or premium,
if any, or interest on the Notes, set aside, segregate and hold in trust for the benefit of the Persons entitled thereto, a sum sufficient
to pay such principal or premium or interest so becoming due and will notify the Trustee of any failure to take such action.
(d) Anything
in this Section 4.14 to the contrary notwithstanding, the Issuer may, at any time, for the purpose of obtaining a satisfaction
and discharge of this Indenture, or for any other reason, pay or cause to be paid to the Paying Agent for delivery to the Trustee all
sums held in trust by it, as required by this Section 4.14, such sums to be delivered by the Paying Agent to the Trustee
to be held by the Trustee upon the trusts herein contained.
(e) Anything
in this Section 4.14 to the contrary notwithstanding, the agreement to hold sums in trust as provided in this Section 4.14
is subject to the provisions of Section 8.4 and Section 8.6.
(f) Upon
an Event of Default under Section 6.1(7), the Trustee shall be the Paying Agent.
Section 4.15. Maintenance
of Corporate Existence.
So
long as any of the Notes shall remain outstanding, the Issuer will at all times (except as otherwise provided or permitted in Article V
of this Indenture) do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence.
Section 4.16. [Reserved]
Section 4.17. Compliance
Certificate.
(a) The
Issuer and the Guarantors will deliver to the Trustee within 90 days after the end of each fiscal year of the Issuer, beginning with
the fiscal year ended December 31, 2023, a statement (which need not be an Officer’s Certificate) signed by the principal
executive officer, the principal accounting officer or the principal financial officer of each of the Issuer and the Guarantors, stating
that a review of the activities of the Issuer and its Subsidiaries during the preceding fiscal year has been made under the supervision
of the signing Officers with a view to determining whether each of the Issuer and the Guarantors has performed its obligations under
this Indenture, and further stating whether or not, to the knowledge of the signers, the Issuer is in default in the performance and
observance of any of the terms, provisions and conditions hereof (without regard to any period of grace or requirement of notice provided
hereunder) and if any Default or Event of Default occurred during such period. In the event of any such default, the certificate will
describe such default, its status and what action the Issuer is taking or proposes to take with respect thereto.
(b) So
long as any of the Notes are outstanding, the Issuer will deliver to the Trustee, promptly 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 Issuer is taking
or proposes to take with respect thereto.
Section 4.18. Taxes.
The
Issuer will pay, and will cause each of its Restricted Subsidiaries to pay, prior to delinquency, all material taxes, assessments and
governmental levies except such as are contested in good faith and by appropriate proceedings or where the failure to effect such payment
would not have a material adverse effect on the financial condition of the Issuer and its Restricted Subsidiaries, taken as a whole.
Section 4.19. Stay,
Extension and Usury Laws.
The
Issuer 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 Issuer 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 4.20. Covenant
Suspension.
(a) If
on any date following the Issue Date (1) the Notes are rated Investment Grade by any two Approved Rating Organizations; and (2) no
Default or Event of Default shall have occurred and be continuing, (the occurrence of the events described in the foregoing clauses (1) and
(2) being collectively referred to as a “Covenant Suspension Event”) then, beginning on that day and at all times
thereafter until the Reinstatement Date (“Suspension Period”), and subject to Section 4.20(c) below,
the provisions of this Indenture set forth in Section 4.3, Section 4.4, Section 4.6, Section 4.7,
Section 4.8, Section 4.9 and Section 5.1(a)(4) (collectively, the “Suspended Covenants”)
hereof will be suspended.
(b) During
any Suspension Period, the Board of Directors of the Issuer may not designate any of its Subsidiaries as Unrestricted Subsidiaries pursuant
to Section 4.10.
(c) In
the event that the Issuer and its Restricted Subsidiaries are not subject to the Suspended Covenants for any period of time as a result
of Section 4.20(a) and, on a subsequent date, at least one of the Approved Rating Organizations which rates the Notes withdraws
its Investment Grade rating, or downgrades the rating assigned to the Notes below an Investment Grade rating, or ceases to rate the Notes
(in each case, such date, the “Reinstatement Date”), then the Issuer and its Restricted Subsidiaries will after the
Reinstatement Date again be subject to the Suspended Covenants with respect to future events for the benefit of the Notes.
(d) On
the Reinstatement Date, all Indebtedness incurred, or Disqualified Stock issued, during the Suspension Period will be subject to Section 4.3.
To the extent such Indebtedness or Disqualified Stock would not be so permitted to be incurred or issued pursuant to such covenant, such
Indebtedness or Disqualified Stock will be deemed to have been outstanding on the Issue Date, so that it is classified as permitted under
Section 4.3(b)(5).
(e) Calculations
made after the Reinstatement Date of the amount available to be made as Restricted Payments under Section 4.4 will be made as though
Section 4.4 had been in effect from the Issue Date and throughout the Suspension Period. Accordingly, Restricted Payments made during
the Suspension Period will reduce the amount available to be made as Restricted Payments under Section 4.4(a) to the extent
provided therein.
(f) For
purposes of Section 4.6, on the Reinstatement Date, any contractual encumbrances or restrictions of the type specified in Sections
4.6(a)(1) through 4.6(a)(3) entered into (or which the Issuer or any Restricted Subsidiary of the Issuer became legally obligated
to enter into) during the Suspension Period will be deemed to have been in effect on the Issue Date, so that they are permitted under
Section 4.6(b)(1).
(g) For
purposes of Section 4.7, on the Reinstatement Date, the unutilized Excess Proceeds amount will be reset to zero.
(h) For
purposes of Section 4.8, any contract, agreement, loan, advance or guarantee with or for the benefit of, any Affiliate of the Issuer
entered into (or which the Issuer or any Restricted Subsidiary of the Issuer became legally obligated to enter into) during the Suspension
Period will be deemed to have been in effect as of the Issue Date for purposes of Section 4.8(b)(5).
(i) Notwithstanding
that the Suspended Covenants may be reinstated:
(1) no
Default or Event of Default will be deemed to have occurred as a result of a failure to comply with the Suspended Covenants during the
Suspension Period (or on the Reinstatement Date) or after the Suspension Period based solely on events that occurred during the Suspension
Period; and
(2) neither
(a) the continued existence, after the Reinstatement Date, of facts and circumstances or obligations that were incurred or otherwise
came into existence during a Suspension Period nor (b) the performance of any such obligations, shall constitute a breach of any
covenant set forth in this Indenture or cause a Default or Event of Default thereunder; provided that (I) the Issuer and
its Restricted Subsidiaries did not incur or otherwise cause such facts and circumstances or obligations to exist in anticipation of
the Notes ceasing to be rated Investment Grade, and (II) the Issuer reasonably believed that such incurrence or actions would not
result in such ceasing.
Section 4.21. Additional
Amounts.
(a) All
payments made by or on behalf of the Issuer or any Guarantor (each a “Payor”) under or with respect to the Notes or
any Note Guarantee will be made free and clear of and without withholding or deduction for or on account of any present or future Taxes,
unless such Payor is required to withhold or deduct Taxes by law or by the interpretation or administration thereof. If a Payor is so
required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of any jurisdiction in which such
Payor is organized, resident or carrying on business for tax purposes or from or through which such Payor makes any payment on the Notes
or any Note Guarantee or any department or political subdivision thereof (each, a “Relevant Taxing Jurisdiction”)
from any payment made under or with respect to the Notes or any Note Guarantee, such Payor, subject to the exceptions stated below, will
pay such additional amounts (“Additional Amounts”) as may be necessary such that the net amount received in respect
of such payment by each Holder or Beneficial Holder after such withholding or deduction (including withholding or deduction attributable
to Additional Amounts payable hereunder but excluding Taxes on net income) will not be less than the amount the Holder or Beneficial
Holder, as the case may be, would have received if such Taxes had not been required to be so withheld or deducted.
(b) A
Payor will not, however, pay Additional Amounts to a Holder or Beneficial Holder with respect to:
(1) Canadian
withholding Taxes imposed on a payment to a Holder or Beneficial Holder with which the Payor does not deal at arm’s length for
the purposes of the Tax Act at the time of making such payment (other than where the non-arm’s length relationship arises as a
result of the exercise or enforcement of rights under any Notes or any Note Guarantee);
(2) a
debt or other obligation to pay an amount to a person with whom the applicable Payor is not dealing at arm’s length within the
meaning of the Tax Act (other than where the non-arm’s length relationship arises as a result of the exercise or enforcement of
rights under any Notes or any Note Guarantee);
(3) any
Canadian withholding Taxes imposed on a payment or deemed payment to a Holder or Beneficial Holder by reason of such Holder or Beneficial
Holder being a “specified shareholder” of the Issuer (within the meaning of subsection 18(5) of the Tax Act) at the
time of payment or deemed payment, or by reason of such Holder or Beneficial Holder not dealing at arm’s length for the purposes
of the Tax Act with a “specified shareholder” of the Issuer at the time of payment or deemed payment (other than where the
Holder or Beneficial Holder is a “specified shareholder,” or does not deal at arm’s length with a “specified
shareholder,” as a result of the exercise or enforcement of rights under any Notes or any Note Guarantee);
(4) Taxes
giving rise to such Additional Amounts that would not have been imposed but for the existence of any present or former connection between
such Holder (or the Beneficial Holder of, or person ultimately entitled to obtain an interest in, such Notes, including a fiduciary,
settler, beneficiary, member, partner, shareholder or other equity interest owner of, or possessor of power over, such Holder or Beneficial
Holder, if such Holder or Beneficial Holder is an estate, trust, partnership, limited liability company, corporation or other entity)
and the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining
a permanent establishment in, the Relevant Taxing Jurisdiction but not including any connection resulting solely from the acquisition,
ownership, or disposition of Notes, the receipt of payments thereunder and/or the exercise or enforcement of rights under any Notes or
any Note Guarantee);
(5) Taxes
giving rise to such Additional Amounts that would not have been imposed but for the failure of such Holder or Beneficial Holder, to the
extent such Holder or Beneficial Holder is legally eligible to do so, to timely satisfy any certification, identification, information,
documentation or other reporting requirements concerning such Holder’s or Beneficial Holder’s nationality, residence, identity
or connection with the Relevant Taxing Jurisdiction or arm’s length relationship with the Payor or otherwise establish the right
to the benefit of an exemption from, or reduction in the rate of, withholding or deduction, if such compliance is required by statute,
treaty, regulation or administrative practice of a Relevant Taxing Jurisdiction as a precondition to exemption from, or reduction in
the rate of deduction or withholding of, such Taxes imposed by the Relevant Taxing Jurisdiction (including, without limitation, a certification
that the Holder or Beneficial Holder is not resident in the Relevant Taxing Jurisdiction);
(6) any
estate, inheritance, gift, sales, transfer, personal property, excise or any similar Taxes or assessment;
(7) any
Taxes that were imposed with respect to any payment on a Note to any Holder who is a fiduciary or partnership or person other than the
sole beneficial owner of such payment and to the extent the Taxes giving rise to such Additional Amounts would not have been imposed
on such payment had the Holder been the beneficiary, partner or sole beneficial owner, as the case may be, of such Note;
(8) Taxes
imposed on, or deducted or withheld from, payments in respect of the Notes if such payments could have been made without such imposition,
deduction or withholding of such Taxes had such Notes been presented for payment (where presentation is required) within 30 days after
the date on which such payments or such Notes became due and payable or the date on which payment thereof is duly provided for, whichever
is later (except to the extent such Holder or Beneficial Holder would have been entitled to such Additional Amounts had such Notes been
presented on the last day of such 30 day period);
(9) any
Tax which is payable otherwise than by deduction or withholding from payments made under or with respect to the Notes or any Note Guarantee;
(10) any
Taxes that are imposed or withheld as a result of the presentation of any Note for payment by or on behalf of a Holder or Beneficial
Holder who would have been able to avoid such withholding or deduction by presenting the relevant Note to another paying agent;
(11) any
Taxes imposed under FATCA;
(12) Taxes
imposed by reason of the Holder or Beneficial Holder being a “specified entity” (as defined in subsection 18.4(1) of
the Tax Act, as it is proposed to be amended by certain Tax proposals released by the Department of Finance (Canada) on April 29,
2022) in respect of the Issuer; or
(13) any
combination of the foregoing subclauses (1) through (12).
(c) At
least 30 calendar days prior to each date on which any payment under or with respect to the Notes or any Note Guarantee is due and payable,
if a Payor will be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts
arises after the 30th day prior to the date on which such payment is due and payable, in which case it will be promptly thereafter),
the Payor will deliver to the Trustee an Officer’s Certificate stating that such Additional Amounts will be payable and the amounts
so payable and will set forth such other information necessary to enable the Trustee to pay such Additional Amounts to Holders and/or
Beneficial Holders on the payment date.
(d) The
Issuer will indemnify and hold harmless the Holders and Beneficial Holders of the Notes for the amount of any Taxes under Regulation
803 of the Tax Act, or any similar or successor provision (other than Taxes described in subclauses (1) through (13) above (but
including, notwithstanding subclause (9), any Taxes payable pursuant to Regulation 803 of the Tax Act) or Taxes arising by reason of
a transfer of the Note to a person resident in Canada with whom the transferor does not deal at arm’s length for the purposes of
the Tax Act except where such non-arm’s length relationship arises as a result of the exercise or enforcement of rights under any
Notes or any Note Guarantee) levied or imposed on and paid by such a Holder or Beneficial Holder as a result of payments made under or
with respect to the Notes or any Note Guarantee.
(e) In
addition, the Payor will pay any stamp, issue, registration, court, documentation, excise or other similar taxes, charges and duties,
including any interest, penalties and any similar liabilities with respect thereto, imposed by any Relevant Taxing Jurisdiction at any
time in respect of the execution, issuance, registration, delivery or enforcement of the Notes (other than on or in connection with a
transfer of the Notes other than the initial sale by an Initial Purchaser), any Note Guarantee or any other document or instrument referred
to thereunder and any such taxes, charges or duties imposed by any Relevant Taxing Jurisdiction on any payments made pursuant to the
Notes or any Note Guarantee and/or any other such document or instrument (limited, solely in the case of taxes, charges or duties attributable
to any payments with respect thereto, to any such taxes, charges or duties imposed in a Relevant Taxing Jurisdiction that are not excluded
under Sections 4.21(b)(5) through (8) and (10) and (11)).
(f) The
obligations under this Section 4.21 will survive any termination, defeasance or discharge of this Indenture and will apply
mutatis mutandis to any successor Person to any Payor and to any jurisdiction in which such successor is organized or is otherwise resident
or doing business for tax purposes or any jurisdiction from or through which payment is made by such successor or its respective agents.
Whenever this Indenture refers to, in any context, the payment of principal, premium, if any, interest or any other amount payable under
or with respect to any Note, such reference shall include the payment of Additional Amounts or indemnification payments as described
hereunder, if applicable.
Section 4.22. After-Acquired
Property.
From
and after the Issue Date, and subject to the applicable limitations and exceptions set forth in the Collateral Documents and this Indenture
(including with respect to Excluded Assets), if the Issuer or any Guarantor acquires any property or rights which are of a type constituting
Collateral under any Collateral Document (excluding, for the avoidance of doubt, any Excluded Assets or assets not required to be Collateral
pursuant to the Collateral Documents), it will be required to execute and deliver such security instruments, financing statements and
such Officer’s Certificates and Opinions of Counsel as are required under this Indenture or any Collateral Document and to otherwise
comply with the requirements of the Collateral Requirement to provide to the Notes Collateral Agent for the benefit of the Notes Secured
Parties a perfected security interest (subject to Permitted Liens) in such after-acquired collateral and to take such actions to add
such after-acquired collateral to the Collateral, and thereupon all provisions of the this Indenture and the Collateral Documents relating
to the Collateral shall be deemed to relate to such after-acquired collateral to the same extent and with the same force and effect,
including, without limitation:
(a) (i) Any
Subsidiary of the Issuer which becomes a Guarantor shall take all such actions necessary to comply with the Collateral Requirement within
sixty (60) days after the occurrence of such event causing such Subsidiary to become a Guarantor (or such longer period as the Notes
Collateral Agent may agree in its reasonable discretion), and (ii) the Issuer shall within ninety (90) days after the acquisition
of such property or rights cause such property (or such longer period as the Notes Collateral Agent may agree in its reasonable discretion)
to be subjected to a Lien to the extent required by the Collateral Requirement and will take, or cause the relevant Guarantor to take,
such actions as shall be necessary (as determined by the Issuer in good faith) to grant and perfect or record such Lien, in each case
in a manner consistent with the Collateral Requirement and the procedures outlined in the Credit Facilities, to the extent applicable.
(b) (i) with
respect to Material Real Property set forth on Schedule I, within ninety (90) days after the Issue Date (or such longer period as the
Notes Collateral Agent may agree in its reasonable discretion) and (ii) with respect to Material Real Property acquired after the
Issue Date, within ninety (90) days after the date of such acquisition (or such longer period as the Notes Collateral Agent may agree
in its reasonable discretion), the Issuer shall, in each case, take, or cause the relevant Guarantor to take, the actions referred to
in the Credit Agreement to provide a Mortgage in favor of the Notes Collateral Agent with respect to such Material Real Property to the
extent such Material Real Property shall not already be subject to a valid and perfected Lien pursuant to the Collateral Requirement;
provided,
that (i) the Notes Collateral Agent shall be deemed to have made such a reasonable determination if such a determination has already
been made by either the First Lien Revolving Credit Agreement Collateral Agent or the First Lien Term Loan Collateral Agent (with respect
to the First Lien Revolving Credit Agreement or the First Lien Term Loan Credit Agreement, respectively) and (ii) with respect to
the time periods referred to in this Section 4.22 that are subject to extensions as the Notes Collateral Agent may agree, it is
understood and agreed that the administrative agent under the First Lien Revolving Credit Agreement or the First Lien Term Loan Credit
Agreement may grant extensions of time under the Credit Agreements for such actions necessary to comply with the Collateral and Guarantee
Requirement, and any such extension shall apply hereunder as if the Notes Collateral Agent had agreed to such extensions.
Article V
SUCCESSOR COMPANY
Section 5.1. Amalgamation,
Merger, Consolidation or Sale of Assets.
(a) The
Issuer may not, in any transaction or series of transactions: (I) amalgamate, merge or consolidate with or into another Person (whether
or not the Issuer is the surviving Person); or (II) sell, assign, transfer, convey, lease or otherwise dispose of all or substantially
all of the properties or assets of the Issuer and its Restricted Subsidiaries taken as a whole, in one or more related transactions,
to another Person; unless:
(1) either:
(A) the
Issuer is the surviving entity; or
(B) the
Person formed by or surviving any such amalgamation, merger or consolidation (if other than the Issuer) or to which such sale, assignment,
transfer, conveyance, lease or other disposition has been made is a Person organized or existing under the laws of Canada or any province
thereof or the United States, any state of the United States or the District of Columbia;
(2) the
Person formed by or surviving any such amalgamation, merger or consolidation (if other than the Issuer) or the Person to which such sale,
assignment, transfer, conveyance, lease or other disposition has been made assumes all the obligations of the Issuer under the Notes,
this Indenture and the Collateral Documents either by operation of law or pursuant to an assumption agreement or other instrument reasonably
satisfactory to the Trustee;
(3) immediately
after such transaction or series of transactions, and giving pro forma effect to any related financing transactions, no Default or Event
of Default exists;
(4) on
the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred
at the beginning of the applicable four-quarter period, either (A) the Issuer or the Person formed by or surviving any such amalgamation,
merger or consolidation (if other than the Issuer), or to which such sale, assignment, transfer, conveyance, lease or other disposition
has been made, will be permitted to incur at least $1.00 of additional Indebtedness pursuant to either the Fixed Charge Coverage Ratio
test or the Consolidated Net Leverage Ratio test set forth in Section 4.3(a) or (B) either (x) the Fixed Charge
Coverage Ratio is equal to or greater than it was immediately prior thereto or (y) the Consolidated Net Leverage Ratio of the Issuer
and its Restricted Subsidiaries would be equal to or less than the Consolidated Net Leverage Ratio of the Issuer and its Restricted Subsidiaries
immediately prior to such transaction;
(5) the
Issuer has delivered to the Trustee (i) an Opinion of Counsel stating that such transaction and, if an assumption agreement or other
instrument is required in connection with such transaction, such assumption agreement or other instrument, complies with Sections
5.1(a)(1) and 5.1(a)(2), and (ii) an Officer’s Certificate stating that all conditions precedent contained
in this Indenture relating to such transaction have been complied with;
(6) to
the extent any assets of the Person which is amalgamated, merged or consolidated with or into another Person are assets of the type which
would constitute Collateral under the Collateral Documents, the surviving Person will take such action as may be reasonably necessary
to cause such property and assets to be made subject to the Lien of the Collateral Documents in the manner and to the extent required
in this Indenture or any of the Collateral Documents and shall take all reasonably necessary action so that such Lien is perfected to
the extent required by the Collateral Documents; and
(7) the
Collateral owned by or transferred to the Person formed by or surviving any such amalgamation, merger or consolidation (if other than
the Issuer) or to which such sale, assignment, transfer, conveyance, lease or other disposition has been made shall: (a) continue
to constitute Collateral under this Indenture and the Collateral Documents, (b) be subject to the Lien in favor of the Notes Collateral
Agent for the benefit of the Notes Secured Parties, and (c) not be subject to any Lien other than Permitted Liens.
(b) A
Guarantor may not, in any transaction or series of transactions: (I) amalgamate, consolidate or merge with or into another Person
(whether or not such Guarantor is the surviving Person); or (II) sell, assign, transfer, convey, lease or otherwise dispose of all
or substantially all of its properties or assets to another Person, other than the Issuer or a Restricted Subsidiary of the Issuer (in
the case of either (I) or (II) above), unless:
(1) immediately
after giving effect to that transaction, and giving pro forma effect to any related financing transactions, no Default or Event of Default
exists;
(2) either:
(A) the
Person acquiring the property in any such sale, assignment, transfer, conveyance, lease or other disposition or the Person formed by
or surviving any such amalgamation, merger or consolidation assumes all the obligations of that Guarantor under its Note Guarantee, either
by operation of law or pursuant to an assumption agreement or other instrument reasonably satisfactory to the Trustee; or
(B) such
sale, assignment, transfer, conveyance, lease or other disposition does not violate Section 4.7;
(3) the
Issuer has delivered to the Trustee (i) an Opinion of Counsel stating that such transaction and, if an assumption agreement or other
instrument is required in connection with such transaction, such assumption agreement or other instrument, complies with Section 5.1(b)(2)(A) and
(ii) an Officer’s Certificate stating that all conditions precedent contained in this Indenture relating to such transaction
have been complied with;
(4) to
the extent any assets of the Guarantor which is merged, consolidated or amalgamated with or into another Person are assets of the type
which would constitute Collateral under the Collateral Documents, such Person will take such action as may be reasonably necessary to
cause such property and assets to be made subject to the Lien of the Collateral Documents in the manner and to the extent required in
this Indenture or any of the Collateral Documents and shall take all reasonably necessary action so that such Lien in perfected to the
extent required by the Collateral Documents; and
(5) the
Collateral owned by or transferred to the surviving Person shall: (i) continue to constitute Collateral under this Indenture and
the Collateral Documents, (ii) be subject to the Lien in favor of the Notes Collateral Agent for the benefit of the Notes Secured
Parties, and (iii) not be subject to any Lien other than Permitted Liens.
(c) For
purposes of this Section 5.1, transfers among or between the Issuer and its Restricted Subsidiaries will be disregarded.
Section 5.2. Successor
Substituted.
Upon
any consolidation or merger, or amalgamation, or any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially
all of the properties or assets of the Issuer and its Restricted Subsidiaries taken as a whole or a Guarantor in accordance with Section 5.1
hereof, the successor formed by such consolidation or amalgamation or into which the Issuer or such Guarantor is merged or to which
such sale, assignment, transfer, lease, conveyance or other disposition is made (in each case, if not the Issuer or such Guarantor, as
applicable) shall succeed to, and may exercise every right and power of, the Issuer or such Guarantor under this Indenture, the Notes,
the Note Guarantees and any Collateral Document with the same effect as if such successor had been named as the Issuer or such Guarantor,
as applicable, herein and shall be substituted for the Issuer or such Guarantor, as applicable (so that from and after the date of such
consolidation, amalgamation, merger, sale, assignment, transfer, lease, conveyance or other disposition, the provisions of this Indenture
referring to the “Issuer” and the “Guarantor,” as applicable, shall refer instead to the successor and not to
the predecessor); and thereafter, except in the case of such a disposition by way of a lease, the Issuer or such Guarantor shall be discharged
and released from all obligations and covenants under this Indenture, the Notes, the Collateral Documents and the Note Guarantees, other
with respect to any Additional Amounts owing.
Article VI
DEFAULTS AND REMEDIES
Section 6.1. Events
of Default.
Each
of the following is an “Event of Default”:
(1) default
for 30 days in the payment when due of interest on the Notes;
(2) default
in the payment when due (at Stated Maturity, upon redemption or otherwise) of the principal of, or premium, if any, on the Notes;
(3) failure
by the Issuer or any Guarantor to comply with any of the other obligations, covenants or agreements (other than a default referred to
in Section 6.1(1) or Section 6.1(2)) in this Indenture for 60 days after written notice has been given to the Issuer by
the Trustee or to the Issuer and the Trustee by the Holders of at least 30% of the aggregate principal amount of the Notes;
(4) default
under any other mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness
by the Issuer or any of its Restricted Subsidiaries (or the payment of which is guaranteed by the Issuer or any of its Restricted Subsidiaries)
whether such Indebtedness or guarantee existed on the Issue Date, or is created after the Issue Date, if that default:
(A) is
caused by a failure to pay principal of such Indebtedness prior to the expiration of the applicable grace or cure period after final
maturity provided in such Indebtedness (a “Payment Default”); or
(B) results
in the acceleration of such Indebtedness prior to its Stated Maturity;
and,
in each case, the principal amount of any such Indebtedness, together with the principal amount of any other such Indebtedness under
which there has been a Payment Default, which remains outstanding or the maturity of which has been so accelerated, aggregates an amount
greater than $50.0 million; provided that if any such Payment Default is cured or waived or any such acceleration is rescinded,
as the case may be, such Event of Default under this Indenture and any consequential acceleration of the Notes shall be automatically
rescinded, so long as such rescission does not conflict with any judgment or decree;
(5) failure
by the Issuer or any of its Restricted Subsidiaries to pay final judgments aggregating in excess of an amount greater than $50.0 million
in cash rendered against the Issuer or any Restricted Subsidiary by a court of competent jurisdiction, which judgments are not paid,
discharged or stayed for a period of 60 days after such judgments becomes final and non-appealable;
(6) except
as permitted by this Indenture, any Note Guarantee of a Significant Subsidiary shall be held in any judicial proceeding to be unenforceable
or invalid or shall cease for any reason to be in full force and effect, or any Guarantor that is a Significant Subsidiary or any Person
acting on behalf of any such Guarantor shall deny or disaffirm its obligations under its Note Guarantee;
(7) the
Issuer or any of its Significant Subsidiaries pursuant to or within the meaning of any Bankruptcy Law:
(A) commences
a voluntary case or proceeding;
(B) applies
for or consents to the entry of an order for relief against it in an involuntary case or proceeding;
(C) applies
for or consents to the appointment of a Custodian of it or for all or substantially all of its assets; or
(D) makes
a general assignment for the benefit of its creditors;
(8) a
court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(A) is
for relief against the Issuer or any of its Significant Subsidiaries as debtor in an involuntary case or proceeding;
(B) appoints
a Custodian of the Issuer or any of its Significant Subsidiaries or a Custodian for all or substantially all of the assets of the Issuer
or any of its Significant Subsidiaries; or
(C) orders
the liquidation of the Issuer or any of its Significant Subsidiaries;
and,
in any such case, the order or decree remains unstayed and in effect for 60 consecutive days and, in the case of the insolvency of a
Significant Subsidiary, such Significant Subsidiary remains a Significant Subsidiary on such 60th day; or
(9) other
than by reason of the satisfaction in full of all obligations under this Indenture and discharge of this Indenture with respect to the
Notes or the release of such Collateral with respect to the Notes in accordance with the terms of this Indenture and the Collateral Documents,
(A) in
the case of any security interest with respect to Collateral having a fair market value in excess of 5.0% of Total Assets, individually
or in the aggregate, such security interest under the Collateral Documents shall, at any time, cease to be a valid and perfected security
interest or shall be declared invalid or unenforceable and any such default continues for 30 days after notice of such default shall
have been given to the Issuer by the Trustee or the Holders of at least 30% of the principal amount of the then outstanding Notes issued
under this Indenture, except to the extent that any such default (A) results from the failure of the Notes Collateral Agent to maintain
possession of certificates, promissory notes or other instruments actually delivered to it representing securities pledged under the
Collateral Documents or (B) to the extent relating to Collateral consisting of real property, is covered by a title insurance policy
with respect to such real property and such insurer has not denied coverage;
(B) the
Issuer or any Guarantor that is a Significant Subsidiary (or any group of Guarantors that, taken together, would constitute a Significant
Subsidiary) shall assert, in any pleading in any court of competent jurisdiction, that any security interest under any Collateral Document
is invalid or unenforceable; or
(C) the
Liens created by the Collateral Documents shall at any time not constitute a valid and perfected Lien on any material portion of the
Collateral intended to be covered thereby (unless perfection is not required by this Indenture or the Collateral Documents) other than
(i)(A) in accordance with the terms of the relevant Collateral Document and this Indenture, (B) the satisfaction in full of
all obligations under this Indenture or (C) any loss of perfection that results from the failure of the Notes Collateral Agent to
maintain possession of certificates delivered to it representing securities pledged under the Collateral Documents and (ii) such
default continues for 30 days after notice of such default shall have been given to the Issuer by the Trustee or the Holders of at least
30% of the principal amount of the then outstanding Notes issued under this Indenture.
Section 6.2. Acceleration
of Maturity; Rescission and Annulment.
In
the case of an Event of Default specified in Section 6.1(7) or Section 6.1(8), all outstanding Notes will become due and
payable immediately without further action or notice. If any other Event of Default occurs and is continuing, the Trustee or the Holders
of at least 30% in principal amount of the then outstanding Notes may declare to be immediately due and payable, by notice in writing
to the Issuer and (if given by the Holders) to the Trustee, the principal amount of all the Notes then outstanding, plus accrued but
unpaid interest to the date of acceleration; provided, however, that after any such declaration of acceleration, the Holders
of a majority in aggregate principal amount of the Notes then outstanding may rescind and annul such declaration if: (a) all existing
Events of Default, other than the non-payment of the principal of, interest and premium (if any) on the Notes that have become due solely
by the declaration of acceleration, have been cured or waived; and (b) the rescission would not conflict with any judgment or decree
of a court of competent jurisdiction.
The
Trustee may withhold from Holders notice of any continuing Default or Event of Default if it determines that withholding notice is in
their interest, except a Default or Event of Default relating to the payment of principal or interest.
Section 6.3. Other
Remedies.
If
an Event of Default occurs and is continuing, the Trustee may pursue any available remedy to collect the payment of principal of, premium
(if any) or interest on the Notes or to enforce the performance of any provision of the Notes or this Indenture.
The
Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding. A delay
or omission by the Trustee or any Holder in exercising any right or remedy accruing upon an Event of Default shall not impair the right
or remedy or constitute a waiver of or acquiescence in the Event of Default. No remedy is exclusive of any other remedy. All available
remedies are cumulative to the extent permitted by law.
Section 6.4. Waiver
of Past Defaults. The Holders of a majority in aggregate principal amount of the Notes then outstanding by notice to the Trustee
may on behalf of the Holders of all of the Notes waive any existing Default or Event of Default and its consequences under this Indenture
and the Collateral Documents except a continuing Default or Event of Default in the payment of interest on, or the principal of, the
Notes or a Default or Event of Default in respect of a provision that under Section 9.2 cannot be amended without the consent
of each Holder affected.
Section 6.5. Control
by Majority.
The
Holders of a majority in principal amount of the then outstanding Notes have the right to direct the time, method and place of conducting
any proceeding for exercising any remedy available to the Trustee or the Notes Collateral Agent or of exercising any trust or power conferred
on the Trustee or the Notes Collateral Agent. However, the Trustee or the Notes Collateral Agent, as applicable, may refuse to follow
any direction that conflicts with law or this Indenture or, subject to Section 7.1 hereof, that is unduly prejudicial to
the rights of other Holders or would involve the Trustee or Notes Collateral Agent in personal liability; provided, however,
that the Trustee or the Notes Collateral Agent, as applicable, may take any other action deemed proper by the Trustee or the Notes Collateral
Agent, as applicable, that is not inconsistent with such direction. Prior to taking any action hereunder, the Trustee or the Notes Collateral
Agent, as applicable, shall be entitled to receive indemnification satisfactory to it against all loss, liability and expense caused
by taking or not taking such action.
Section 6.6. Limitation
on Suits.
Except
to enforce payment of the principal of, and premium (if any) or interest on any Note on or after the Stated Maturity of such Note (after
giving effect to the grace periods specified in Section 6.1(1) and Section 6.1(2)), a Holder will not have
any right to institute any proceeding with respect to this Indenture, or for the appointment of a receiver or trustee, or for any remedy
thereunder, unless the Trustee:
(1) shall
have failed to act for a period of 60 days after previously receiving written notice of a continuing Event of Default from such Holder
and a request to act from Holders of at least 30% in aggregate principal amount of the Notes then outstanding;
(2) has
been offered indemnity and funding thereof, if requested, satisfactory to the Trustee in its reasonable judgment; and
(3) during
such 60 day period, has not received from the Holders of a majority in aggregate principal amount of the Notes then outstanding a direction
inconsistent with such request.
A
Holder may not use this Indenture to prejudice the rights of another Holder or to obtain a preference or priority over another Holder
(it being understood that the Trustee does not have an affirmative duty to ascertain whether or not any such use by a Holder prejudices
the rights of any other Holders or obtains preference or priority over such other Holders).
Section 6.7. Rights
of Holders to Receive Payment.
Notwithstanding
any other provision of this Indenture, the contractual right of any Holder to receive payment of principal of, premium, if any, and interest
on the Notes held by such Holder, on or after the respective due dates expressed in the Notes, or to bring suit for the enforcement of
any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder. For the avoidance
of doubt, no amendment to, or deletion or waiver of, Article IV (other than Section 4.1), or any action taken
by the Issuer or any Guarantor that is not prohibited under this Indenture, shall be deemed to impair or affect any rights of any Holder
of Notes to receive payment of principal of, or premium, if any, or interest on, the Notes.
Section 6.8. Collection
Suit by Trustee.
If
an Event of Default specified in Section 6.1(1) or Section 6.1(2) hereof occurs and is continuing,
the Trustee may recover judgment in its own name and as trustee of an express trust against the Issuer or any Guarantor for the whole
amount then due and owing (together with interest on any unpaid interest to the extent lawful) and the amounts provided for in Section 7.6
hereof to cover the costs and expenses of collection, including the reasonable compensation, disbursement and advances of the Trustee,
its agents and counsel.
Section 6.9. 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 and the Holders allowed in any judicial proceedings relative to the Issuer or any Guarantor or their respective creditors or
properties, and any Custodian in any such judicial proceeding is hereby authorized by each Holder to make 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 it for the compensation, expenses, disbursements and advances of the Trustee, its agents and its counsel, and any other amounts due
the Trustee under Section 7.6 hereof. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent
to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes
or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 6.10. Priorities.
If
the Trustee collects any money or property pursuant to this Article VI, it shall pay out the money or property in the following
order:
First:
to the payment of all amounts due to the Trustee under Section 7.6 hereof and all amounts due to the Notes Collateral Agent;
Second:
to Holders for amounts due and unpaid on the Notes for principal and interest and premium, if any, ratably, without preference or priority
of any kind, according to the amounts due and payable on the Notes for principal and interest and premium, if any, respectively; and
Third:
to the Issuer or to such party as a court of competent jurisdiction shall direct.
The
Trustee may fix a record date and payment date for any payment to Holders pursuant to this Section 6.10.
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, 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 6.7 hereof or a suit by Holders of more
than 10% in outstanding principal amount of the Notes.
Article VII
TRUSTEE
Section 7.1. Duties
of Trustee.
(a) If
an Event of Default has occurred and is continuing, the Trustee shall exercise the rights and powers vested in it by this Indenture and
use the same degree of care and skill in their exercise as a prudent man would exercise or use under the circumstances in the conduct
of his own affairs.
(b) Except
during the continuance of an Event of Default: (i) 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 (ii) 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 and opinions which by any provision hereof or thereof 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 stated therein).
(c) The
Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct,
except that:
(1) this
Section 7.1(c) does not limit the effect of Section 7.1(b) hereof;
(2) the
Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(3) the
Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received
by it pursuant to Section 6.5 hereof.
(d) Whether
or not therein expressly so provided, every provision of this Indenture that in any way relates to the Trustee is subject to this Section 7.1.
(e) The
Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Issuer.
(f) Money
held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
(g) No
provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur financial liability in the performance
of any of its duties hereunder or thereunder or in the exercise of any of its rights or powers, if it shall have reasonable grounds to
believe that repayment of such funds or adequate security or indemnity against such risk or liability is not reasonably assured to it.
Section 7.2. Rights
of Trustee.
(a) The
Trustee may rely on any document believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee
need not investigate any fact or matter stated in the document.
(b) Before
the Trustee acts or refrains from acting, it may require an Officer’s Certificate or an Opinion of Counsel. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on the Officer’s Certificate or Opinion of Counsel
or both. Any request or direction of the Issuer mentioned herein shall be sufficiently evidenced by an Issuer Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution.
(c) The
Trustee may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any agent appointed
with due care. No Depositary shall be deemed an agent of the Trustee, and the Trustee shall not be responsible for any act or omission
by any Depositary.
(d) The
Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within its rights
or powers conferred upon it by this Indenture.
(e) The
Trustee may consult with counsel, and the advice or opinion of counsel with respect to legal matters relating to this Indenture and the
Notes shall be full and complete authorization and protection from liability in respect to any action taken, omitted or suffered by it
hereunder in good faith and in accordance with the advice or opinion of such counsel.
(f) Except
for a default under Section 6.1(1) or Section 6.1(2) hereof (provided that the Trustee is the
Paying Agent), the Trustee shall not be deemed to have notice of any default or event of default unless written notice is received by
a Trust Officer of the Trustee at the Corporate Trust Office, and such notice references the Notes and this Indenture and states that
it is a notice of Default or Event of Default.
(g) In
no event shall the Trustee be responsible or liable for special, incidental, indirect, punitive or consequential loss or damage of any
kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood
of such loss or damage and regardless of the form of action.
(h) The
Trustee shall 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.
(i) 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, including the Notes Collateral Agent.
(j) The
Trustee shall not be required to give any bond or surety in respect of the performance of its powers and duties hereunder.
(k) The
Trustee may request that the Issuer deliver a certificate setting forth the names of individuals and/or titles of officers authorized
at such time to take specified actions pursuant to this Indenture.
Section 7.3. Individual
Rights of Trustee.
The
Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Issuer or its
Affiliates with the same rights it would have if it were not Trustee. However, in the event that the Trustee acquires any conflicting
interest (as defined in the TIA) after a Default has occurred and is continuing, it must (i) eliminate such conflict within 90 days,
(ii) apply to the Commission for permission to continue or (iii) resign. The Trustee is also subject to Sections 7.9
and 7.10 hereof.
Section 7.4. Trustee’s
Disclaimer.
The
Trustee shall not be responsible for and makes no representation as to the validity or adequacy of this Indenture or the Notes, it shall
not be accountable for the Issuer’s use of the proceeds from the Notes, it shall not be responsible for the use or application
of any money received by any Paying Agent (other than itself as Paying Agent), and it shall not be responsible for any statement of the
Issuer in this Indenture or in any document issued in connection with the sale of the Notes or in the Notes other than the Trustee’s
certificate of authentication.
The
Trustee does not assume any responsibility for any failure or delay in performance or any breach by the Issuer or any other Grantor under
this Indenture, the First Intercreditor Agreement and the Collateral Documents. The Trustee shall not be responsible to the Holders or
any other Person for any recitals, statements, information, representations or warranties contained in this Indenture, the Collateral
Documents, the First Lien Intercreditor Agreement or in any certificate, report, statement, or other document referred to or provided
for in, or received by the Trustee under or in connection with, this Indenture, the First Lien Intercreditor Agreement or any Collateral
Document; the execution, validity, genuineness, effectiveness or enforceability of the First Lien Intercreditor Agreement and any Collateral
Document of any other party thereto; the genuineness, enforceability, collectability, value, sufficiency, location or existence of any
Collateral, or the validity, effectiveness, enforceability, sufficiency, extent, perfection or priority of any Lien therein; the validity,
enforceability or collectability of any Notes Obligations; the assets, liabilities, financial condition, results of operations, business,
creditworthiness or legal status of any obligor; or for any failure of any obligor to perform its Notes Obligations under this Indenture,
the First Lien Intercreditor Agreement and the Collateral Documents.
Section 7.5. Notice
of Defaults.
If
a Default or Event of Default occurs and is continuing and if a Trust Officer has actual knowledge thereof, the Trustee shall mail (or
in the case of Global Notes, deliver electronically in accordance with the Applicable Procedures of the Depositary) to each Holder notice
of the Default or Event of Default within 90 days after it occurs. Except in the case of a Default or Event of Default relating to payment
of principal of, premium, if any, or interest on, any Note (including payments pursuant to the redemption or required repurchase provisions
of such Note), the Trustee may withhold the notice if and so long as its board of directors, the executive committee of its board of
directors or a committee of its Trust Officers in good faith determines that withholding the notice is in the interests of Holders.
Section 7.6. Compensation
and Indemnity.
(a) The
Issuer shall pay to the Trustee from time to time compensation for its services as the Issuer and the Trustee shall from time to time
agree upon in writing. The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust.
The Issuer shall reimburse the Trustee upon request for all reasonable out-of-pocket expenses, disbursements and advances incurred or
made by it, including but not limited to the costs of collection, costs of preparing and reviewing reports, certificates and other documents,
costs of preparation and mailing of notices to Holders and reasonable costs of counsel (in the case of Canadian counsel, on a solicitor-client,
full-indemnity basis) retained by the Trustee in connection with the delivery of an Opinion of Counsel or otherwise, in addition to the
compensation for its services. Such expenses shall include the reasonable compensation and expenses, disbursements and advances of the
Trustee’s agents and counsel (and in the case of Canadian counsel, on a solicitor-client, full-indemnity basis). The Issuer shall
indemnify and hold harmless the Trustee (in its individual and trustee capacities) and its officers, directors, employees, shareholders
and agents against any and all loss, liability, claims, action, suit, cost or expense (including reasonable attorneys’ fees (and
in the case of Canadian attorneys, on a solicitor-client, full-indemnity basis)) of any kind and nature whatsoever incurred by it in
connection with the acceptance or administration of this trust and the performance of its duties hereunder, including the costs and expenses
of enforcing this Indenture (including this Section 7.6) and of defending itself against any claims or liability in connection
with the exercise or performance of any of its powers or duties hereunder or thereunder (whether asserted by any Holder, the Issuer or
otherwise). The Trustee shall notify the Issuer promptly of any claim for which it may seek indemnity. Failure by the Trustee to so notify
the Issuer shall not relieve the Issuer of its obligations hereunder. The Issuer shall defend the claim and the Trustee may have separate
counsel and the Issuer shall pay the fees and expenses of such counsel (and in the case of Canadian counsel, on a solicitor-client, full-indemnity
basis). The Issuer is not required to reimburse any expense or indemnify against any loss, liability claim, suit, cost or expense incurred
by the Trustee through the Trustee’s own willful misconduct or gross negligence.
(b) To
secure the Issuer’s payment obligations in this Section 7.6, the Trustee shall have a lien prior to the Notes on all
money or property held or collected by the Trustee other than money or property held in trust to pay principal of, premium (if any) and
interest on particular Notes.
(c) The
Issuer’s payment obligations pursuant to this Section 7.6 shall survive the discharge of this Indenture and the resignation
or removal of the Trustee. When the Trustee incurs expenses after the occurrence of a Default specified in Section 6.1(7) hereof
with respect to the Issuer, the expenses are intended to constitute expenses of administration under any Bankruptcy Law.
Section 7.7. 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 7.7.
(b) The
Trustee may resign at any time by so notifying the Issuer. The Holders of a majority in outstanding principal amount of the Notes may
remove the Trustee by so notifying the Trustee and the Issuer and may appoint a successor Trustee. The Issuer may remove the Trustee
if: (i) the Trustee fails to comply with Section 7.9 hereof; (ii) the Trustee is adjudged bankrupt or insolvent;
(iii) a Custodian or other public officer takes charge of the Trustee or its property; or (iv) the Trustee otherwise becomes
incapable of acting.
(c) If
the Trustee resigns or is removed by the Issuer or by the Holders of a majority in outstanding principal amount of the Notes and such
Holders do not reasonably promptly appoint a successor Trustee, or if a vacancy exists in the office of Trustee for any reason (the Trustee
in such event being referred to herein as the retiring Trustee), the Issuer shall promptly appoint a successor Trustee.
(d) A
successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Issuer. Thereupon the resignation
or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of
the Trustee under this Indenture. The successor Trustee shall mail or deliver electronically a notice of its succession to the Holders.
The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee, subject to the lien provided
for in Section 7.6 hereof.
(e) If
a successor Trustee does not take office within 30 days after the retiring Trustee resigns or is removed, the retiring Trustee or the
Holders of 10% in outstanding principal amount of the Notes may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
(f) If
the Trustee fails to comply with Section 7.9 hereof after written notice thereto, the Holders of at least 10% in principal
amount of the then outstanding Notes may petition any court of competent jurisdiction for the removal of the Trustee and the appointment
of a successor Trustee.
(g) Notwithstanding
the replacement of the Trustee pursuant to this Section 7.7, the Issuer’s obligations under Section 7.6
hereof shall continue for the benefit of the retiring Trustee.
Section 7.8. Successor
Trustee by Merger.
(a) If
the Trustee consolidates with, merges or converts into, or transfers all or substantially all its corporate trust business or assets
to, another Person, the resulting, surviving or transferee Person without any further act shall be the successor Trustee.
(b) If
at the time such successor or successors by merger, conversion or consolidation to the Trustee shall succeed to the trusts created by
this Indenture, any of the Notes shall have been authenticated but not delivered, any such successor to the Trustee may adopt the certificate
of authentication of any predecessor Trustee, and deliver such Notes so authenticated; and if 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 to the Trustee; and in all such cases such certificates shall have the full force which it is anywhere in
the Notes or in this Indenture provided that the certificate of the Trustee shall have.
Section 7.9. Eligibility;
Disqualification.
The
Trustee shall at all times satisfy the requirements of Trust Indenture Act Section 310(a) with the same effect as if this Indenture
were qualified under the Trust Indenture Act. There shall at all times be a Trustee hereunder that is a Person organized and doing business
under the laws of the U.S. or of any state thereof that is authorized under such laws to exercise corporate trustee power, that is subject
to supervision or examination by federal or state authorities and that has a combined capital and surplus (together with its Affiliates)
of at least $15 million as set forth in its most recent published annual report of condition. The Trustee shall comply with Trust Indenture
Act Section 310(b) with the same effect as if this Indenture were qualified under the Trust Indenture Act.
Section 7.10. Preferential
Collection of Claims Against Company.
The
Trustee shall comply with Trust Indenture Act Section 311(a), excluding any creditor relationship listed in Trust Indenture Act
Section 311(b). A Trustee who has resigned or been removed shall be subject to Trust Indenture Act Section 311(a) to the
extent indicated.
Section 7.11. Collateral
Documents; First Lien Intercreditor Agreement.
By
their acceptance of the Notes, the Holders hereby authorize and direct the Trustee and Notes Collateral Agent, as the case may be, to
execute and deliver the Joinder Agreement and any other Collateral Documents in which the Trustee or the Notes Collateral Agent, as applicable,
is named as a party, including any Collateral Documents executed on or after the Issue Date. It is hereby expressly acknowledged and
agreed that, in doing so, the Trustee and the Notes Collateral Agent are not responsible for the terms or contents of such agreements,
or for the validity or enforceability thereof, or the sufficiency thereof for any purpose. Whether or not so expressly stated therein,
in entering into, or taking (or forbearing from) any action under, the First Lien Intercreditor Agreement or any other Collateral Documents,
the Trustee and the Notes Collateral Agent each shall have all of the rights, privileges, benefits, immunities, indemnities and other
protections granted to it under this Indenture (in addition to those that may be granted to it under the terms of such other agreement
or agreements).
Article VIII
DISCHARGE OF INDENTURE; DEFEASANCE
Section 8.1. Discharge
of Liability on Notes; Defeasance.
(a) Subject
to Section 8.1(c) hereof, this Indenture, the Note Guarantees and the Collateral Documents will cease to be of further
effect as to all Notes issued hereunder when (i) either (x) all Notes that have been authenticated, except lost, stolen or
destroyed Notes that have been replaced or paid and Notes for whose payment money has been deposited in trust and thereafter repaid to
the Issuer, have been delivered to the Trustee for cancellation or (y) all Notes that have not been delivered to the Trustee for
cancellation have become due and payable by reason of the sending of a notice of redemption or otherwise or will become due and payable
within one year and the Issuer has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust solely for
the benefit of the Holders, cash in U.S. dollars, Government Securities, or a combination of cash in U.S. dollars and Government Securities,
in amounts as will be sufficient to pay and discharge the principal, premium, if any, and accrued interest to the date of final maturity
or redemption, (ii) no Default or Event of Default has occurred and is continuing on the date of the deposit or will occur as a
result of the deposit other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit and
the deposit will not result in a breach or violation of, or constitute a default under, any other material instrument to which the Issuer
or any Restricted Subsidiary is a party or by which the Issuer or any Restricted Subsidiary is bound, (iii) the Issuer has paid
or caused to be paid all sums then payable by it under this Indenture, and (iv) the Issuer has delivered irrevocable instructions
to the Trustee to apply the deposited money toward the payment of such Notes at Stated Maturity or the Redemption Date, as the case may
be.
(b) Subject
to Section 8.2 hereof, the Issuer at its option at any time may terminate (i) all its obligations, except as specified
in Section 8.1(c) hereof, under the Notes and this Indenture, the Collateral Documents and all obligations of the Guarantors
with respect to their Note Guarantees (“legal defeasance option”), and after giving effect to such legal defeasance,
any omission to comply with such obligations shall no longer constitute a Default or Event of Default or (ii) its obligations under
Section 4.2, Section 4.3, Section 4.4, Section 4.5, Section 4.6, Section 4.7,
Section 4.8, Section 4.9, Section 4.11 and Section 4.22 hereof, except to the extent such obligations
are imposed by Section 5.1(a)(4) hereof, and the Issuer may omit to comply with and shall have no liability in respect
of any term, condition or limitation set forth in any such Section, whether directly or indirectly, by reason of any reference elsewhere
herein to any such Section or by reason of any reference in any such Section to any other provision herein or in any other
document and the operation of Section 6.1(3), Section 6.1(4), Section 6.1(5), Section 6.1(6), Section 6.1(9) and
the events specified in such Sections shall no longer constitute an Event of Default (this clause (ii) being referred to as the
“covenant defeasance option”), but otherwise the remainder of this Indenture and the Notes shall be unaffected thereby.
The Issuer may exercise its legal defeasance option notwithstanding its prior exercise of its covenant defeasance option. If the Issuer
exercises its legal defeasance option or its covenant defeasance option, each Guarantor shall be released from its obligations with respect
to its Note Guarantee as provided in Section 10.10 hereof.
If the Issuer exercises its legal defeasance option,
payment of the Notes may not be accelerated because of an Event of Default. If the Issuer exercises its covenant defeasance option, payment
of the Notes may not be accelerated because of an Event of Default specified in Section 6.1(3), Section 6.1(4) and
Section 6.1(5) hereof or the failure of the Issuer to comply with Section 5.1(a)(4).
Upon satisfaction of the conditions set forth
herein and upon request of the Issuer, the Trustee shall acknowledge in writing the discharge of those obligations that the Issuer terminates,
on demand of the Issuer (accompanied by an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent
provided in this Indenture relating to the legal defeasance or covenant defeasance, as the case may be, have been complied with) and
at the cost and expense of the Issuer.
(c) Notwithstanding
the provisions of Section 8.1(a) and Section 8.1(b) hereof, the obligations of the Issuer in Section 2.3,
Section 2.4, Section 2.5, Section 2.6, Section 2.7, Section 2.9, Section 7.6,
Section 7.7 hereof, and in this Article VIII shall survive until the Notes have been paid in full. Thereafter,
the following provisions shall survive until otherwise terminated or discharged hereunder:
(1) the
rights of Holders 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 referred to in Section 8.2;
(2) the
Issuer’s obligations concerning issuing temporary Notes, mutilated, destroyed, lost, or stolen Notes and the maintenance of a register
in respect of the Notes;
(3) the
rights, powers, trusts, duties and immunities of the Trustee and the Notes Collateral Agent, and the Issuer’s obligations in connection
therewith; and
(4) this
Section 8.1.
Section 8.2. Conditions
to Defeasance.
The Issuer may exercise its legal defeasance option
or its covenant defeasance option only if:
(1) the
Issuer shall have deposited or caused to be deposited with the Trustee as trust funds or property in trust for the purpose of making
payment on such Notes an amount of cash or Government Securities as will, together with the income to accrue thereon and reinvestment
thereof, be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm, or firm of independent public accountants,
to pay, satisfy and discharge the entire principal, interest, if any, premium, if any and any other sums due to the Stated Maturity or
an optional redemption date of the Notes;
(2) no
Default or Event of Default shall have occurred and be continuing on the date of such deposit (other than a Default or Event of Default
resulting from the borrowing of funds to be applied to such deposit and the granting of Liens to secure such borrowing);
(3) the
Issuer shall have delivered to the Trustee an Officer’s Certificate stating that the deposit was not made by the Issuer with the
intent of preferring the Holders over its other creditors or with the intent of defeating, hindering, delaying, or defrauding any of
its other creditors or others;
(4) the
Issuer shall have delivered to the Trustee, (a) an Opinion of Counsel acceptable to the Trustee in its reasonable judgment or an
advance tax ruling from the Canada Revenue Agency (or successor agency) to the effect that the Holders of outstanding Notes will not
recognize income, gain or loss for Canadian income tax purposes as a result of such legal defeasance or covenant defeasance, as the case
may be, and will be subject to Canadian 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 or covenant defeasance, as the case may be, had not occurred; (b) in the case of legal defeasance,
an Opinion of Counsel acceptable to the Trustee in its reasonable judgment to the effect that (i) the Issuer has received from,
or there has been published by, the Internal Revenue Service a ruling, or (ii) since the Issue Date, there has been a change in
the applicable U.S. federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel will confirm
that, the Holders of outstanding Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such
legal defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would
have been the case if such legal defeasance had not occurred; and (c) in the case of covenant defeasance, an Opinion of Counsel
acceptable to the Trustee in its reasonable judgment to the effect that the Holders of outstanding Notes will not recognize income, gain
or loss for U.S. federal income tax purposes as a result of such covenant defeasance and will be subject to U.S. federal income tax on
the same amounts, in the same manner and at the same times as would have been in the case if such covenant defeasance had not occurred;
(5) the
Issuer shall have satisfied the Trustee and the Notes Collateral Agent that it has paid, caused to be paid or made provisions for the
payment of all applicable expenses of the Trustee and the Notes Collateral Agent;
(6) such
legal defeasance option or covenant defeasance option will not result in a breach or violation of, or constitute a Default under, any
material agreement or instrument (other than this Indenture) to which the Issuer or any of its Subsidiaries is a party or by which the
Issuer or any of its Subsidiaries is bound; and
(7) the
Issuer shall have delivered to the Trustee and the Notes Collateral Agent an Officer’s Certificate stating that all conditions
precedent relating to the legal defeasance option or the covenant defeasance option, as the case may be, have been complied with.
Section 8.3. Delivery
and Application of Trust Money.
The Trustee shall hold in trust money or Government
Securities deposited with it pursuant to this Article VIII. It shall apply the deposited money and the money from Government
Securities in accordance with this Indenture to the payment of principal, premium, if any, of and interest on the Notes.
Any funds or obligations deposited with the Trustee
pursuant to this Article VIII shall be (a) denominated in the currency or denomination of the Notes in respect of which
such deposit is made, (b) irrevocable, subject to certain exceptions, and (c) made under the terms of an escrow and/or trust
agreement in form and substance satisfactory to the Trustee and which provides for the due and punctual payment of the principal of,
premium, if any, and interest on the Notes being satisfied.
Section 8.4. Repayment
to Company.
The Trustee and each Paying Agent shall promptly
turn over to the Issuer upon receipt of an Issuer Order any excess money or securities held by them upon payment of all the obligations
under this Indenture.
Subject to any applicable abandoned property law,
the Trustee and each Paying Agent shall pay to the Issuer upon request any money held by them for the payment of principal of, or premium,
if any, or interest on the Notes that remains unclaimed for two years (or any such money then held by the Issuer or any Subsidiary shall
be discharged from any trust hereunder), and, thereafter, Holders entitled to the money must look to the Issuer for payment as unsecured
general creditors; provided, however, that, if any Definitive Notes are then outstanding, the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the Issuer cause to be published once, in The New York Times
and The Wall Street Journal (national edition), notice that such money remains unclaimed and that, after a date specified therein, which
will not be less than 30 days from the date of such notification or publication, any unclaimed balance of such money then remaining will
be repaid to the Issuer.
Section 8.5. Indemnity
for Government Securities.
The Issuer shall pay and shall indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against deposited Government Securities or the principal and interest received
on such Government Securities.
Section 8.6. Reinstatement.
If the Trustee or any Paying Agent is unable to
apply any money in accordance with this Article VIII by reason of any legal proceeding or any order or judgment of any court
or governmental authority enjoining, restraining or otherwise prohibiting such application, the Issuer’s and the Guarantors’
obligations under this Indenture and the affected Notes shall be revived and reinstated as though no money had been deposited pursuant
to this Article VIII until such time as the Trustee or such Paying Agent is permitted to apply all such money or Government
Securities in accordance with this Article VIII; provided that if the Issuer has made any payment in respect of principal
of, premium, if any, or interest on Notes or, as applicable, other amounts because of the reinstatement of its obligations, the Issuer
shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money or Government Securities held by
the Trustee.
Article IX
AMENDMENTS
Section 9.1. Without
Consent of Holders.
Notwithstanding Section 9.2 of this
Indenture, the Issuer, the Guarantors, the Trustee and/or the Notes Collateral Agent may amend or supplement this Indenture, the Notes,
the Note Guarantees and the Collateral Documents without notice to or consent of any Holder:
(1) to
cure any ambiguity, defect or inconsistency;
(2) to
provide for uncertificated Notes in addition to or in place of certificated Notes (provided, that the uncertificated Notes are
issued in registered form for purposes of Section 163(f) of the Code);
(3) to
provide for the assumption of the Issuer’s or a Guarantor’s obligations to Holders of Notes in the case of an amalgamation,
merger or consolidation or sale of all or substantially all of the Issuer’s or a Guarantor’s assets or otherwise to comply
with Section 5.1;
(4) to
add a co-issuer of the Notes, to add any additional Guarantors or to evidence the release of any Guarantor from its obligations under
its Note Guarantee to the extent that such release is permitted by this Indenture, or to secure the Notes and the Note Guarantees or
add collateral with respect to the Notes;
(5) to
conform the text of this Indenture, the Notes, the Note Guarantees or the Collateral Documents to any provision of the “Description
of Secured Notes” set forth in the Offering Memorandum to the extent that such provision was intended to be a verbatim recitation
of a provision of this Indenture, the Notes, the Note Guarantees or the Collateral Documents;
(6) to
provide for the issuance of Additional Notes in accordance with the limitations set forth in this Indenture;
(7) to
surrender any right or power conferred upon the Issuer or make any change that would provide any additional rights or benefits to the
Holders of Notes or that does not materially adversely affect the legal rights under this Indenture of any such Holder;
(8) to
evidence or provide for the acceptance of appointment under this Indenture of a successor Trustee;
(9) to
mortgage, pledge, hypothecate or grant any other Lien in favor of the Trustee and/or the Notes Collateral Agent for the benefit of the
Notes Secured Parties, as additional security for the payment and performance of all or any portion of the Notes Obligations, in any
property or assets, including any which are required to be mortgaged, pledged or hypothecated, or in which a Lien is required to be granted
to or for the benefit of the Trustee or the Notes Collateral Agent pursuant to this Indenture, any of the Collateral Documents or otherwise;
(10) to
add Additional First Lien Secured Parties to any Collateral Documents;
(11) to
enter into any intercreditor agreement having substantially similar terms with respect to the Holders as those set forth in the First
Lien Intercreditor Agreement, taken as a whole, or any joinder thereto; and
(12) in
the case of any Collateral Document, to include therein any legend required to be set forth therein pursuant to the First Lien Intercreditor
Agreement or to modify any such legend as required by the First Lien Intercreditor Agreement.
Section 9.2. With
Consent of Holders.
(a) Except
as provided in this Section 9.2, the Issuer, the Guarantors and the Trustee with the affirmative votes of the Holders of
at least a majority in principal amount of the Notes represented and voting at a meeting of Holders, or by a resolution in writing of
the Holders of at least a majority in principal amount of the Notes then outstanding (including, without limitation, consents obtained
in connection with a purchase of, or offer to purchase, or exchange offer for, Notes):
(1) this
Indenture, the Notes, the Note Guarantees and the Collateral Documents may each be amended or supplemented; and
(2) any
existing Default or Event of Default or lack of compliance with any provision of this Indenture, the Notes, the Note Guarantees or the
Collateral Documents may be waived.
(b) Without
the consent of, or a resolution passed by the affirmative votes of or signed by, each Holder affected, an amendment, supplement or waiver
may not (with respect to any Notes held by a non-consenting Holder):
(1) reduce
the principal amount of Notes whose Holders must consent to an amendment, supplement or waiver;
(2) reduce
the principal of any Note or change the time for payment thereof;
(3) reduce
the rate of or change the time for payment of interest on any Note;
(4) make
any Note payable in a currency other than that stated in the Notes;
(5) waive
a Default or Event of Default in the payment of principal of, or interest or premium, if any, on the Notes (except a rescission of acceleration
of the Notes by the Holders of at least a majority in aggregate principal amount of the Notes and a waiver of the payment default that
resulted from such acceleration);
(6) amend
the contractual right expressly set forth in the Indenture and the Notes of any Holder to institute suit for the enforcement of any payment
of principal, premium, if any, and interest on such Holders’ Notes on or after the due dates therefor;
(7) modify
or change any provision of this Indenture or the related definitions affecting the ranking of the Notes or any Note Guarantee in any
manner adverse to the Holders;
(8) release
any Guarantor from any of its obligations under its Note Guarantee or this Indenture otherwise than in accordance with the terms of this
Indenture; or
(9) modify
these amending provisions.
Notwithstanding
the foregoing, without the consent of the Holders of at least 66⅔% in aggregate principal amount of the Notes then outstanding,
no amendment or waiver may (A) make any change in any Collateral Document or the provisions in this Indenture dealing with Collateral
or application of trust proceeds of the Collateral with the effect of releasing the Liens on all or substantially all of the Collateral
which secure the obligations in respect of the Notes or (B) change or alter the priority of the Liens securing the Notes Obligations
in respect of the Notes in any material portion of the Collateral in any way adverse to the Holders in any material respect, other than,
in each case, as provided under the terms of the Collateral Documents or the First Lien Intercreditor Agreement.
Any item of business referred to in this Indenture
requiring the written approval or consent of the Holders may be obtained by means of the affirmative vote of the requisite Holders represented
at a duly constituted meeting of Holders or a resolution in writing of the requisite Holders of Notes then outstanding.
The consent of the Holders is not necessary under
this Indenture to approve the particular form of any proposed amendment or waiver. It is sufficient if the consent approves the substance
of the proposed amendment or waiver.
After an amendment, supplement or waiver under
this Section 9.2 becomes effective, the Issuer shall send to each Holder of Notes affected thereby a notice briefly describing
such amendment. The failure to give such notice to any or all Holders, or any defect therein, shall not impair or affect the validity
of any amendment, supplement or waiver under this Section 9.2.
Section 9.3. Revocation
and Effect of Consents.
Until an amendment, supplement or waiver becomes
effective, a consent to it by a Holder of a Note is a continuing consent by the Holder of a Note and every subsequent Holder of a Note
or portion of a Note that evidences the same debt as the consenting Holder’s Note, even if notation of the consent is not made
on any Note. However, any such Holder of a Note or subsequent Holder of a Note may revoke the consent as to its Note if the Trustee receives
written notice of revocation before the date the amendment, supplement or waiver becomes effective. An amendment, supplement or waiver
becomes effective in accordance with its terms and thereafter binds every Holder.
The Issuers 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 120 days after such record date unless the consent of the requisite number of Holders has been obtained.
Section 9.4. Notation
on or Exchange of Notes.
If an amendment or supplement changes the terms
of a Note, the Trustee may require the Holder of the Note to deliver it to the Trustee. The Trustee may place an appropriate notation
on the Note regarding the changed terms and return it to the Holder. Alternatively, if the Issuer or the Trustee so determines, the Issuer
in exchange for the Note shall issue and the Trustee, upon receipt of an Issuer Order, shall authenticate a new Note that reflects the
changed terms, but the failure to make the appropriate notation or to issue a new Note shall not affect the validity and effect of such
amendment or supplement.
Section 9.5. Trustee
to Sign Amendments.
The Trustee and the Notes Collateral Agent shall
sign any amendment or supplement authorized pursuant to this Article IX if the amendment or supplement does not adversely affect
the rights, duties, powers, liabilities or immunities of the Trustee or the Notes Collateral Agent, as applicable. If it does, the Trustee
may but need not sign it. In signing any amendment or supplement the Trustee and the Notes Collateral Agent shall receive, and (subject
to Section 7.1 hereof) shall be fully protected in relying upon, an Officer’s Certificate and an Opinion of Counsel,
each stating that the execution of such amendment or supplement is authorized or permitted by this Indenture.
Article X
NOTE GUARANTEES
Section 10.1. Note
Guarantees.
Subject to this Article X, each of
the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder and to the Trustee and its successors and assigns,
irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Issuer hereunder or thereunder,
the full and punctual payment of principal of, premium (if any) and interest on the Notes when due, whether at Stated Maturity, or upon
redemption, required repurchase pursuant to Section 4.7 or Section 4.11 hereof, acceleration or otherwise, and
all other monetary obligations owing by the Issuer under this Indenture (including obligations owing to the Trustee) and the Notes (all
the foregoing being hereinafter collectively called the “Obligations”). The Guarantors further agree that the Obligations
may be extended or renewed, in whole or in part, without notice or further assent from the Guarantors, and that the Guarantors will remain
bound under this Article X notwithstanding any extension or renewal of any Obligation. Failing payment when due of any amount
so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to promptly pay the same. Each Guarantor agrees
that this is a guarantee of payment and not a guarantee of collection. All payments under each Note Guarantee will be made in U.S. dollars.
The Guarantors waive presentation to, demand of
payment from and protest to the Issuer of any of the Obligations and also waive notice of protest for nonpayment. The Guarantors waive
notice of any Default under the Notes or the Obligations. The obligations of the Guarantors hereunder shall not be affected by: (i) the
failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other
Person under this Indenture, the Notes, the Note Guarantees or any other agreement or otherwise; (ii) any extension or renewal of
any Obligation; (iii) any rescission, waiver, amendment, modification or supplement of any of the terms or provisions of this Indenture
(other than this Article X), the Notes, the Note Guarantees or any other agreement; (iv) the release of security, if
any, held by any Holder or the Trustee for the Obligations or any of them; (v) the failure of any Holder or the Trustee to exercise
any right or remedy against any other guarantor of the Obligations; (vi) any change in the ownership of the Issuer; or (vii) any
other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk
of the Guarantors or would otherwise operate as a discharge of the Guarantors as a matter of law or equity, except for payment of the
Notes in full.
The Guarantors, jointly and severally, further
agree that their Note Guarantees herein constitute a guarantee of payment when due (and not a guarantee of collection) and waive any
right to require that any resort be had by any Holder or the Trustee to security, if any, held for payment of the Obligations.
The obligations of the Guarantors hereunder shall
not be subject to any reduction, limitation, impairment or termination for any reason (except to the extent provided in Section 10.2
hereof), including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense, setoff,
counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Obligations
or otherwise.
The Guarantors, jointly and severally, further
agree that their Note Guarantees herein shall continue to be effective or be reinstated, as the case may be, if at any time payment,
or any part thereof, of any Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or
reorganization of the Issuer or otherwise.
In furtherance of the foregoing and not in limitation
of any other right which any Holder or the Trustee has at law or in equity against the Guarantors by virtue hereof, upon the failure
of the Issuer to pay any Obligation when and as the same shall become due, whether at Stated Maturity, upon redemption, required repurchase,
acceleration or otherwise, the Guarantors hereby promise to and will, upon receipt of written demand by the Trustee, forthwith pay, or
cause to be paid, in cash, to the Trustee an amount equal to the sum of (i) the unpaid principal amount of such Obligations, (ii) accrued
and unpaid interest on such Obligations (but only to the extent not prohibited by law) and (iii) all other monetary Obligations
of the Issuer to the Holders and the Trustee.
The Guarantors, jointly and severally, agree that,
as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Obligations
may be accelerated as provided in Article VI for the purposes of the Note Guarantee herein, notwithstanding any stay, injunction
or other prohibition preventing such acceleration in respect of the Obligations, and (y) in the event of any declaration of acceleration
of such Obligations as provided in Article VI, such Obligations (whether or not due and payable) shall forthwith become due
and payable by the Guarantors for the purposes of this Section 10.1.
The Guarantors, jointly and severally, also agree
to pay any and all costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or any Holder in enforcing
any rights under this Section 10.1.
The Note Guarantee issued by any Guarantor shall
be a general senior secured obligation of such Guarantor and shall be pari passu in right of payment with all existing and future senior
Indebtedness of such Guarantor, if any.
Section 10.2. Limitation
on Liability.
Each Guarantor, and by its acceptance of Notes,
each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute a
fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer
Act, the Fraudulent Preferences Act (Alberta), the Statute of Elizabeth or any similar federal, provincial or state law to the extent
applicable to any Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably
agree that the obligations of each Guarantor will be limited to the maximum amount that will, after giving effect to such maximum amount
and all other contingent and fixed liabilities of such Guarantor that are relevant under such laws, and after giving effect to any collections
from, rights to receive contribution from or payments made by or on behalf of any other Guarantor in respect of the obligations of such
other Guarantor under this Article X, result in the obligations of such Guarantor under its Note Guarantee not constituting
a fraudulent transfer or conveyance.
Section 10.3. Execution
and Delivery of Note Guarantee.
To evidence its Note Guarantee set forth in Section 10.1,
each Guarantor hereby agrees that this Indenture (or a supplemental indenture substantially in form of Exhibit D hereof)
will be executed on behalf of such Guarantor by one of its Officers.
Each Guarantor hereby agrees that its Note Guarantee
set forth in Section 10.1 will remain in full force and effect notwithstanding any absence of a notation of such Note Guarantee
on any Note.
If an officer whose signature is on this Indenture
(or a supplemental indenture substantially in form of Exhibit D hereof) no longer holds that office at the time the Trustee
authenticates a Note, the Note Guarantee of such Guarantor shall be valid nevertheless.
The delivery of any Note by the Trustee, after
the authentication thereof hereunder, will constitute due delivery of the Note Guarantee set forth in this Indenture on behalf of the
Guarantors.
In the event that the Issuer or any of its Restricted
Subsidiaries acquires or creates another Restricted Subsidiary after the Issue Date, the Issuer shall comply with the provisions of Section 4.9
hereof and this Article X, to the extent applicable.
Section 10.4. Successors
and Assigns.
Except as otherwise provided in Section 10.9
hereof, this Article X shall be binding upon the Guarantors and their successors and assigns and shall inure to the benefit
of the successors and assigns of the Trustee and the Holders and, in the event of any transfer or assignment of rights in accordance
with the terms of this Indenture by any Holder or the Trustee, the rights and privileges conferred upon that party in this Indenture
and in the Notes shall automatically extend to and be vested in such transferee or assignee, all subject to the terms and conditions
of this Indenture, the Notes and the Note Guarantees.
Section 10.5. No
Waiver.
Neither a failure nor a delay on the part of either
the Trustee or the Holders in exercising any right, power or privilege under this Article X shall operate as a waiver thereof,
nor shall a single or partial exercise thereof preclude any other or further exercise of any right, power or privilege. The rights, remedies
and benefits of the Trustee and the Holders herein expressly specified are cumulative and not exclusive of any other rights, remedies
or benefits which either may have under this Article X at law, in equity, by statute or otherwise.
Section 10.6. Right
of Contribution.
Each Guarantor hereby agrees that to the extent
that a Guarantor shall have paid more than its proportionate share of any payment made hereunder, such Guarantor shall be entitled to
seek and receive contribution from and against any other Guarantor hereunder who has not paid its proportionate share of such payment.
Each Guarantor’s right of contribution shall be subject to the terms and conditions of this Article X. The provisions
of this Section 10.6 shall in no respect limit the obligations and liabilities of any Guarantor to the Trustee and the Holders
and each Guarantor shall remain liable to the Trustee and the Holders for the full amount guaranteed by such Guarantor hereunder.
Section 10.7. No
Subrogation.
Notwithstanding any payment or payments made by
any of the Guarantors hereunder, no Guarantor shall be entitled to exercise any rights of subrogation it may have to any of the rights
of the Trustee or any Holder against the Issuer or any other Guarantor or any collateral security or guarantee or right of offset held
by the Trustee or any Holder for the payment of the Obligations, nor shall any Guarantor seek or be entitled to seek any contribution
or reimbursement from the Issuer or any other Guarantor in respect of payments made by such Guarantor hereunder, until all amounts owing
to the Trustee and the Holders by the Issuer on account of the Obligations are paid in full. If any amount shall be paid to any Guarantor
on account of such subrogation rights at any time when all of the Obligations shall not have been paid in full, such amount shall be
held by such Guarantor in trust for the Trustee and the Holders, segregated from other funds of such Guarantor, and shall, forthwith
upon receipt by such Guarantor, be turned over to the Trustee in the exact form received by such Guarantor (duly indorsed by such Guarantor
to the Trustee, if required), to be applied against the Obligations.
Section 10.8. Benefits
Acknowledged.
Each Guarantor acknowledges that it will receive
direct and indirect benefits from the financing arrangements contemplated by this Indenture and that the guarantee and waivers made by
it pursuant to its Note Guarantee are knowingly made in contemplation of such benefits.
Section 10.9. Modification.
No modification, amendment or waiver of any provision
of this Article X, nor the consent to any departure by the Guarantors therefrom, shall in any event be effective unless the
same shall be made in accordance with Article IX hereof. No notice to or demand on the Guarantors in any case shall entitle
the Guarantors to any other or further notice or demand in the same, similar or other circumstances.
Section 10.10. Release
of Note Guarantees.
(a) A
Guarantor will be released from its obligations under its Note Guarantee upon the occurrence of any of the following:
(1) in
the event of (i) a sale or other disposition of all or substantially all of the assets of such Guarantor, by way of consolidation,
merger, amalgamation, dividend, distribution or otherwise, to a Person that is not (either before or after giving effect to such transaction)
the Issuer or a Restricted Subsidiary, provided that upon the completion of such sale or other disposition, such Guarantor ceases
to exist, or (ii) a sale or other disposition of the Capital Stock of such Guarantor such that it ceases to be a Restricted Subsidiary,
in the case of each of the foregoing clauses (i) and (ii) to the extent that such sale or other disposition is permitted under
this Indenture;
(2) the
release or discharge of the guarantee by, or direct obligation of, such Guarantor with respect to its obligations under the First Lien
Term Loan Credit Agreement (including as a result of such Guarantor being designated as an “Unrestricted Subsidiary” under
the First Lien Term Loan Credit Agreement), except a discharge or release by or a result of payment under such guarantee or direct obligation;
(3) if
such Guarantor is designated as an Unrestricted Subsidiary in accordance with the applicable provisions of this Indenture, upon the effectiveness
of such designation;
(4) upon
payment in full in cash of the principal of, accrued and unpaid interest and premium (if any) on, the Notes; or
(5) upon
the Issuer exercising its legal defeasance or covenant defeasance option in accordance with Section 8.1(b) hereof or
the Issuer’s obligations under this Indenture otherwise being discharged in accordance with the terms of this Indenture.
(b) Upon
delivery by the Issuer to the Trustee of an Officer’s Certificate stating that any of the conditions described in Sections 10.10(a)(1) through
(a)(5) has occurred, the Trustee shall execute any supplemental indenture or other documents reasonably requested by the
Issuer in order to evidence the release of any Guarantor from its obligations under its Note Guarantee and this Indenture.
Article XI
COLLATERAL
Section 11.1. Collateral
Documents.
The due and punctual payment of the principal
of, premium and interest on the Notes when and as the same shall be due and payable, whether on an Interest Payment Date, at maturity,
by acceleration, repurchase, redemption or otherwise, and interest on the overdue principal of, premium and interest on the Notes and
performance of all other Notes Obligations of the Issuer and the Guarantors to the Holders, the Trustee or the Notes Collateral Agent
under this Indenture, the Notes, the Note Guarantees, the First Lien Intercreditor Agreement and the Collateral Documents, according
to the terms hereunder or thereunder, shall be secured as provided in the Collateral Documents, which provide for the terms of the Liens
that secure the Notes Obligations, subject to the terms of the First Lien Intercreditor Agreement. The Trustee, the Issuer and the Guarantors
hereby acknowledge and agree that the Notes Collateral Agent holds the Collateral in trust for the benefit of the Notes Secured Parties
and pursuant to the terms of the Collateral Documents and the First Lien Intercreditor Agreement. Each Holder, by accepting a Note, consents
and agrees to the terms of the Collateral Documents (including the provisions providing for the possession, use, release and foreclosure
of Collateral) and the First Lien Intercreditor Agreement as the same may be in effect or may be amended from time to time in accordance
with their terms and this Indenture, and authorizes and directs the Notes Collateral Agent to enter into the Collateral Documents and
the First Lien Intercreditor Agreement on and after the Issue Date and to perform its obligations and exercise its rights thereunder
in accordance therewith. The Issuer shall deliver to the Notes Collateral Agent copies of all documents required to be filed pursuant
to the Collateral Documents, and will do or cause to be done all such acts and things as may be reasonably required by the next sentence
of this Section 11.1, to assure and confirm to the Notes Collateral Agent the security interest in the Collateral contemplated hereby,
by the Collateral Documents or any part thereof, as from time to time constituted, so as to render the same available for the security
and benefit of this Indenture and of the Notes secured hereby, according to the intent and purposes herein expressed. On or following
the Issue Date and subject to the First Lien Intercreditor Agreement, the Collateral Documents and this Indenture, the Issuer and the
Guarantors shall execute any and all further documents, financing statements (including continuation statements and amendments to financing
statements), agreements and instruments, and take all further action that may be reasonably required under applicable law, in order to
grant, preserve, maintain, protect and perfect (or continue the perfection of) the validity and priority of the Liens and security interests
created or intended to be created by the Collateral Documents in the Collateral, including by causing the Collateral Requirement to be
and remain satisfied; provided that for so long as there are outstanding any First Lien Revolving Credit Obligations or First
Lien Term Loan Obligations, no actions shall be required to be taken with respect to the perfection of the security interests in the
Collateral to the extent such actions are not required to be taken with respect to the First Lien Revolving Credit Obligations or First
Lien Term Loan Obligations, as applicable. Such security interests and Liens will be created under the Collateral Documents and other
security agreements, mortgages, deeds of trust and other instruments and documents. With respect to Collateral constituting Material
Real Property, the Issuer shall cause the Collateral Requirement to be satisfied within 90 days after the Issue Date.
Section 11.2. Release
of Collateral.
(a) Collateral
may be released from the Lien and security interest created by the Collateral Documents at any time and from time to time in accordance
with the provisions of the Collateral Documents, the First Lien Intercreditor Agreement and this Indenture. Notwithstanding anything
to the contrary in the Collateral Documents, the First Lien Intercreditor Agreement and this Indenture, the Issuer and the Guarantors
will be entitled to the automatic release of property and other assets constituting Collateral from the Liens securing the Notes and
the Notes Obligations under any one or more of the following circumstances:
(1) to
consummate the sale, transfer or other disposition (including by the termination of capital leases or the repossession of the leased
property in a capital lease by the lessor) of such property or assets (to a Person that is not the Issuer or a Subsidiary of the Issuer)
to the extent not prohibited under Section 4.7;
(2) in
the case of a Guarantor that is released from its Guarantee with respect to the Notes pursuant to this Indenture, the release of the
property and assets of such Guarantor;
(3) upon
the occurrence of a Covenant Suspension Event;
(4) the
release of Excess Proceeds or Collateral Excess Proceeds that remain unexpended after the conclusion of an Asset Sale Offer or a Collateral
Asset Sale Offer conducted in accordance with this Indenture;
(5) if
and to the extent such property constitutes an Excluded Asset; or
(6) as
described under Article IX.
(b) The
Liens on the Collateral securing the Notes and the Note Guarantees also will be released:
(1) upon
payment in full of the principal of, together with accrued and unpaid interest on, the Notes and all other Notes Obligations under this
Indenture, the Note Guarantees and the Collateral Documents that are due and payable at or prior to the time such principal, together
with accrued and unpaid interest;
(2) upon
a legal defeasance or covenant defeasance under this Indenture as described under Article VII, or a discharge of this Indenture
as described under Section 8.1; or
(3) pursuant
to the First Lien Intercreditor Agreement.
(c) With
respect to any release of Collateral, upon receipt of an Officer’s Certificate and an Opinion of Counsel each stating that all
conditions precedent under this Indenture, the Collateral Documents and the First Lien Intercreditor Agreement, as applicable, to such
release have been met and that it is permitted for the Trustee and/or Notes Collateral Agent to execute and deliver the documents requested
by the Issuer in connection with such release and any necessary or proper instruments of termination, satisfaction or release prepared
by the Issuer, the Trustee and the Notes Collateral Agent shall, execute, deliver or acknowledge (at the Issuer’s expense) such
instruments or releases to evidence the release of any Collateral permitted to be released pursuant to this Indenture or the Collateral
Documents or the First Lien Intercreditor Agreement and shall do or cause to be done (at the Issuer’s expense) all acts reasonably
requested of them to release such Lien as soon as is reasonably practicable. Neither the Trustee nor the Notes Collateral Agent shall
be liable for any such release undertaken in reliance upon any such Officer’s Certificate or Opinion of Counsel, and notwithstanding
any term hereof or in any Collateral Document or in the First Lien Intercreditor Agreement to the contrary, the Trustee and the Notes
Collateral Agent shall not be under any obligation to release any such Lien and security interest, or execute and deliver any such instrument
of release, satisfaction or termination, unless and until it receives such Officer’s Certificate and Opinion of Counsel, upon which
it shall be entitled to conclusively rely.
Section 11.3. Suits
to Protect the Collateral.
Subject to the provisions of VII and the Collateral
Documents and the First Lien Intercreditor Agreement, the Trustee may or may direct the Notes Collateral Agent to take all actions it
determines in order to:
(a) enforce
any of the terms of the Collateral Documents; and
(b) collect
and receive any and all amounts payable in respect of the Notes Obligations hereunder.
Subject to the provisions of the Collateral Documents
and the First Lien Intercreditor Agreement, the Trustee and the Notes Collateral Agent, at the Issuer’s sole cost and expense,
shall have power to institute and to maintain such suits and proceedings as the Trustee may determine to prevent any impairment of the
Collateral by any acts which may be unlawful or in violation of any of the Collateral Documents or this Indenture, and such suits and
proceedings as the Trustee may determine to preserve or protect its interests and the interests of the Holders in the Collateral. Nothing
in this Section 11.3 shall be considered to impose any such duty or obligation to act on the part of the Trustee or the Notes Collateral
Agent.
Section 11.4. Authorization
of Receipt of Funds by the Trustee Under the Collateral Documents.
Subject to the provisions of the First Lien Intercreditor
Agreement, the Trustee is authorized to receive any funds for the benefit of the Holders distributed under the Collateral Documents,
and to make further distributions of such funds to the Holders according to the provisions of this Indenture.
Section 11.5. Purchaser
Protected.
In no event shall any purchaser in good faith
of any property purported to be released hereunder be bound to ascertain the authority of the Notes Collateral Agent or the Trustee to
execute the applicable release or to inquire as to the satisfaction of any conditions required by the provisions hereof for the exercise
of such authority or to see to the application of any consideration given by such purchaser or other transferee; nor shall any purchaser
or other transferee of any property or rights permitted by this Article XI to be sold be under any obligation to ascertain or inquire
into the authority of the Issuer or the applicable Guarantor to make any such sale or other transfer.
Section 11.6. Powers
Exercisable by Receiver or Trustee.
In case the Collateral shall be in the possession
of a receiver or trustee, lawfully appointed, the powers conferred in this Article XI upon the Issuer or a Guarantor with respect
to the release, sale or other disposition of such property may be exercised by such receiver or trustee, and an instrument signed by
such receiver or trustee shall be deemed the equivalent of any similar instrument of the Issuer or a Guarantor or of any Officer or Officers
thereof required by the provisions of this Article XI; and if the Trustee or Notes Collateral Agent shall be in the possession of
the Collateral under any provision of this Indenture, then such powers may be exercised by the Trustee or the Notes Collateral Agent.
Section 11.7. [Reserved]
Section 11.8. Notes
Collateral Agent.
(a) The
Issuer and each of the Holders by acceptance of the Notes hereby designates and appoints the Notes Collateral Agent as its agent under
this Indenture, the Collateral Documents and the First Lien Intercreditor Agreement, and the Issuer and each of the Holders by acceptance
of the Notes hereby irrevocably authorizes the Notes Collateral Agent to take such action on its behalf under the provisions of this
Indenture, the Collateral Documents and the First Lien Intercreditor Agreement and to exercise such powers and perform such duties as
are expressly delegated to the Notes Collateral Agent by the terms of this Indenture, the Collateral Documents and the First Lien Intercreditor
Agreement, and consents and agrees to the terms of the First Lien Intercreditor Agreement and each Collateral Document, as the same may
be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms.
The Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 11.8. Each Holder agrees that
any action taken by the Notes Collateral Agent in accordance with the provision of this Indenture, the First Lien Intercreditor Agreement
and the Collateral Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall
be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the
Collateral Documents and the First Lien Intercreditor Agreement, the duties of the Notes Collateral Agent shall be ministerial and administrative
in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and
in the Collateral Documents and the First Lien Intercreditor Agreement to which the Notes Collateral Agent is a party, nor shall the
Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder or any Grantor,
and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral
Documents and the First Lien Intercreditor Agreement or otherwise exist against the Notes Collateral Agent. Without limiting the generality
of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is
not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law.
Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship
between independent contracting parties.
(b) The
Notes Collateral Agent may perform any of its duties under this Indenture, the Collateral Documents or the First Lien Intercreditor Agreement
by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates,
and the respective officers, directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates (a “Related
Person”), and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled
to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral
Agent shall not be responsible for the negligence or misconduct of any receiver, agent, employee, attorney-in-fact or Related Person
that it selects as long as such selection was made in good faith and with due care.
(c) None
of the Notes Collateral Agent or any of its respective Related Persons shall (i) be liable for any action taken or omitted to be
taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except for its own gross negligence
or willful misconduct) or under or in connection with any Collateral Document or the First Lien Intercreditor Agreement or the transactions
contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of
the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Issuer or any other
Grantor or Affiliate of any Grantor, or any Officer or Related Person thereof, contained in this Indenture, the Collateral Documents
or the First Lien Intercreditor Agreement, or in any certificate, report, statement or other document referred to or provided for in,
or received by the Notes Collateral Agent under or in connection with, this Indenture, the Collateral Documents or the First Lien Intercreditor
Agreement, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Documents or
the First Lien Intercreditor Agreement, or for any failure of any Grantor or any other party to this Indenture, the Collateral Documents
or the First Lien Intercreditor Agreement to perform its obligations hereunder or thereunder. None of the Notes Collateral Agent or any
of its respective Related Persons shall be under any obligation to the Trustee or any Holder to ascertain or to inquire as to the observance
or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral Documents or the First Lien Intercreditor
Agreement or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(d) The
Notes Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or
conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made
by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer
or any other Grantor), independent accountants and other experts and advisors selected by the Notes Collateral Agent. The Notes Collateral
Agent 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, or other paper or document. The Notes Collateral Agent
shall be fully justified in failing or refusing to take any action under this Indenture, the Collateral Documents or the First Lien Intercreditor
Agreement unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal
amount of the Notes as it determines and, if it so requests, it shall first be indemnified to its satisfaction by the Holders against
any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral
Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Documents or
the First Lien Intercreditor Agreement in accordance with a request, direction, instruction or consent of the Trustee or the Holders
of a majority in aggregate principal amount of the then outstanding Notes and such request and any action taken or failure to act pursuant
thereto shall be binding upon all of the Holders.
(e) The
Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a
responsible officer of the Notes Collateral Agent shall have received written notice from the Trustee or the Issuer referring to this
Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Notes Collateral
Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article VI
or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 11.8).
(f) The
Notes Collateral Agent may resign at any time by 30 days’ written notice to the Trustee and the Issuer, such resignation to be
effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns
under this Indenture, the Issuer shall appoint a successor collateral agent. If no successor collateral agent is appointed prior to the
intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignation), the Trustee, at the
direction of the Holders of a majority of the aggregate principal amount of the Notes then outstanding, may appoint a successor collateral
agent, subject to the consent of the Issuer (which consent shall not be unreasonably withheld and which shall not be required during
a continuing Event of Default). If no successor collateral agent is appointed and consented to by the Issuer pursuant to the preceding
sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Notes
Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment
as successor collateral agent hereunder, such successor collateral agent shall succeed to all the rights, powers and duties of the retiring
Notes Collateral Agent, and the term “Notes Collateral Agent” shall mean such successor collateral agent, and the retiring
Notes Collateral Agent’s appointment, powers and duties as the Notes Collateral Agent shall be terminated. After the retiring Notes
Collateral Agent’s resignation hereunder, the provisions of this Section 11.8 (and Section 7.6) shall continue to inure
to its benefit and the retiring Notes Collateral Agent shall not by reason of such resignation be deemed to be released from liability
as to any actions taken or omitted to be taken by it while it was the Notes Collateral Agent under this Indenture.
(g) Computershare
Trust Company, N.A. shall initially act as Notes Collateral Agent and shall be authorized to appoint co-Notes Collateral Agents as necessary
in its sole discretion. Except as otherwise explicitly provided herein or in the Collateral Documents or the First Lien Intercreditor
Agreement, neither the Notes Collateral Agent nor any of its respective officers, directors, employees or agents or other Related Persons
shall be liable for failure to demand, collect or realize upon any of the Collateral or for any delay in doing so or shall be under any
obligation to sell or otherwise dispose of any Collateral upon the request of any other Person or to take any other action whatsoever
with regard to the Collateral or any part thereof. The Notes Collateral Agent shall be accountable only for amounts that it actually
receives as a result of the exercise of such powers, and neither the Notes Collateral Agent nor any of its officers, directors, employees
or agents shall be responsible for any act or failure to act hereunder, except for its own gross negligence or willful misconduct.
(h) The
Notes Collateral Agent is authorized and directed to (i) enter into the Collateral Documents to which it is party, whether executed
on or after the Issue Date, (ii) enter into the Joinder Agreement, (iii) make the representations of the Holders set forth
in the Collateral Documents and First Lien Intercreditor Agreement, (iv) bind the Holders on the terms as set forth in the Collateral
Documents and the First Lien Intercreditor Agreement and (v) perform and observe its obligations under the Collateral Documents
and the First Lien Intercreditor Agreement.
(i) If
at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or
any payments with respect to the Notes Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments
received by the Trustee from the Notes Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Notes
Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article VII, the Trustee shall promptly
turn the same over to the Notes Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the
Notes Collateral Agent such proceeds to be applied by the Notes Collateral Agent pursuant to the terms of this Indenture, the Collateral
Documents and the First Lien Intercreditor Agreement.
(j) The
Notes Collateral Agent is each Holder’s agent for the purpose of perfecting the Holders’ security interest in assets which,
in accordance with Article 9 of the Uniform Commercial Code or the PPSA, as applicable, can be perfected only by possession. Should
the Trustee obtain possession of any such Collateral, upon request from the Issuer, the Trustee shall notify the Notes Collateral Agent
thereof and promptly shall deliver such Collateral to the Notes Collateral Agent or otherwise deal with such Collateral in accordance
with the Notes Collateral Agent’s instructions.
(k) The
Notes Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists
or is owned by any Grantor or is cared for, protected, or insured or has been encumbered, or that the Notes Collateral Agent’s
Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular
priority, or to determine whether all of the Grantor’s property constituting Collateral intended to be subject to the Lien and
security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness,
validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty
of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Notes
Collateral Agent pursuant to this Indenture, any Collateral Document or the First Lien Intercreditor Agreement other than pursuant to
the instructions of the Trustee or the Holders of a majority in aggregate principal amount of the Notes or as otherwise provided in the
Collateral Documents. Neither the Trustee nor the Notes Collateral Agent shall have any duty or obligation to monitor the condition,
financial or otherwise, of any Grantor.
(l) If
the Issuer or any Guarantor (i) incurs any First Lien Obligations at any time when no applicable intercreditor agreement is in effect
or at any time when Indebtedness constituting First Lien Obligations entitled to the benefit of an existing intercreditor agreement is
concurrently retired, and (ii) delivers to the Notes Collateral Agent an Officer’s Certificate so stating and requesting the
Notes Collateral Agent to enter into an intercreditor agreement (on substantially the same terms as the First Lien Intercreditor Agreement)
in favor of a designated agent or representative for the holders of the First Lien Obligations so incurred, together with an Opinion
of Counsel, the Holders acknowledge and agree that the Notes Collateral Agent shall (and is hereby authorized and directed to) enter
into such intercreditor agreement (at the sole expense and cost of the Issuer, including legal fees and expenses of the Notes Collateral
Agent), bind the Holders on the terms set forth therein and perform and observe its obligations thereunder; provided that neither
an Officer’s Certificate nor an Opinion of Counsel shall be required in connection with the Joinder Agreement to be entered into
by the Notes Collateral Agent on the Issue Date.
(m) No
provision of this Indenture, the First Lien Intercreditor Agreement or any Collateral Document shall require the Notes Collateral Agent
(or 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 thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Holders
(or the Trustee in the case of the Notes Collateral Agent) unless it shall have received indemnity satisfactory to the Notes Collateral
Agent and the Trustee against potential costs and liabilities incurred by the Notes Collateral Agent relating thereto. Notwithstanding
anything to the contrary contained in this Indenture, the First Lien Intercreditor Agreement or the Collateral Documents, in the event
the Notes Collateral Agent is entitled or required to commence an action to foreclose or otherwise exercise its remedies to acquire control
or possession of the Collateral, the Notes Collateral Agent shall not be required to commence any such action or exercise any remedy
or to inspect or conduct any studies of any property under the mortgages or take any such other action if the Notes Collateral Agent
has determined that the Notes Collateral Agent may incur personal liability as a result of the presence at, or release on or from, the
Collateral or such property, of any hazardous substances. The Notes Collateral Agent shall at any time be entitled to cease taking any
action described in this clause if it no longer reasonably deems any indemnity, security or undertaking from the Issuer or the Holders
to be sufficient.
(n) The
Notes Collateral Agent (i) shall not be liable for any action taken or omitted to be taken by it in connection with this Indenture,
the First Lien Intercreditor Agreement and the Collateral Documents or instrument referred to herein or therein, except to the extent
that any of the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from its
own gross negligence or willful misconduct, (ii) shall not be liable for interest on any money received by it except as the Notes
Collateral Agent may agree in writing with the Issuer (and money held in trust by the Notes Collateral Agent need not be segregated from
other funds except to the extent required by law) and (iii) may consult with counsel of its selection and the advice or opinion
of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action
taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive
rights or powers to the Notes Collateral Agent shall not be construed to impose duties to act.
(o) Neither
the Notes Collateral Agent nor the Trustee shall be liable for delays or failures in performance resulting from acts beyond its control.
Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations
superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither
the Notes Collateral Agent nor the Trustee shall be liable for any indirect, special, punitive, incidental or consequential damages (included
but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of action.
(p) The
Notes Collateral Agent does not assume any responsibility for any failure or delay in performance or any breach by the Issuer or any
other Grantor under this Indenture, the First Lien Intercreditor Agreement and the Collateral Documents. The Notes Collateral Agent shall
not be responsible to the Holders or any other Person for any recitals, statements, information, representations or warranties contained
in this Indenture, the Collateral Documents, the First Lien Intercreditor Agreement, any Notes or in any certificate, report, statement,
or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture,
the First Lien Intercreditor Agreement or any Collateral Document; the execution, validity, genuineness, effectiveness or enforceability
of this Indenture, the First Lien Intercreditor Agreement and any Collateral Documents of any other party thereto; the genuineness, enforceability,
collectability, value, sufficiency, location or existence of any Collateral, or the validity, effectiveness, enforceability, sufficiency,
extent, perfection or priority of any Lien therein; the validity, enforceability or collectability of any Notes Obligations; the assets,
liabilities, financial condition, results of operations, business, creditworthiness or legal status of any obligor; or for any failure
of any obligor to perform its Notes Obligations under this Indenture, the First Lien Intercreditor Agreement and the Collateral Documents.
The Notes Collateral Agent shall have no obligation to any Holder or any other Person to ascertain or inquire into the existence of any
Default or Event of Default, the observance or performance by any obligor of any terms of this Indenture, the First Lien Intercreditor
Agreement and the Collateral Documents, or the satisfaction of any conditions precedent contained in this Indenture, the First Lien Intercreditor
Agreement and any Collateral Documents. The Notes Collateral Agent shall not be required to initiate or conduct any litigation or collection
or other proceeding under this Indenture, the First Lien Intercreditor Agreement and the Collateral Documents unless expressly set forth
hereunder or thereunder. The Notes Collateral Agent shall have the right at any time to seek instructions from the Holders with respect
to the administration of this Indenture, the Collateral Documents and the First Lien Intercreditor Agreement.
(q) The
parties hereto and the Holders hereby agree and acknowledge that neither the Notes Collateral Agent nor the Trustee shall assume, be
responsible for or otherwise be obligated for any liabilities, claims, causes of action, suits, losses, allegations, requests, demands,
penalties, fines, settlements, damages (including foreseeable and unforeseeable), judgments, expenses and costs (including but not limited
to, any remediation, corrective action, response, removal or remedial action, or investigation, operations and maintenance or monitoring
costs, for personal injury or property damages, real or personal) of any kind whatsoever, pursuant to any environmental law as a result
of this Indenture, the First Lien Intercreditor Agreement, the Collateral Documents or any actions taken pursuant hereto or thereto.
Further, the parties hereto and the Holders hereby agree and acknowledge that in the exercise of its rights under this Indenture, the
First Lien Intercreditor Agreement and the Collateral Documents, the Notes Collateral Agent may hold or obtain indicia of ownership primarily
to protect the security interest of the Notes Collateral Agent in the Collateral and that any such actions taken by the Notes Collateral
Agent shall not be construed as or otherwise constitute any participation in the management of such Collateral. In the event that the
Notes Collateral Agent or the Trustee is required to acquire title to an asset for any reason, or take any managerial action of any kind
in regard thereto, in order to carry out any fiduciary or trust obligation for the benefit of another, which in the Notes Collateral
Agent or the Trustee’s sole discretion may cause the Notes Collateral Agent or the Trustee to be considered an “owner or
operator” under the provisions of the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”),
42 U.S.C. §9601, et seq., or otherwise cause the Notes Collateral Agent or the Trustee to incur liability under CERCLA or any other
federal, state, provincial or local law, the Notes Collateral Agent and the Trustee each reserves the right, instead of taking such action,
to either resign as the Notes Collateral Agent or the Trustee or arrange for the transfer of the title or control of the asset to a court-appointed
receiver. Neither the Notes Collateral Agent nor the Trustee shall be liable to the Issuer, the Guarantors or any other Person for any
environmental claims or contribution actions under any federal, state, provincial or local law, rule or regulation by reason of
the Notes Collateral Agent or the Trustee’s actions and conduct as authorized, empowered and directed hereunder or relating to
the discharge, release or threatened release of hazardous materials into the environment. If at any time it is necessary or advisable
for property to be possessed, owned, operated or managed by any Person (including the Notes Collateral Agent or the Trustee) other than
the Issuer or the Guarantors, Holders of a majority in aggregate principal amount of the then outstanding Notes shall direct the Notes
Collateral Agent or the Trustee to appoint an appropriately qualified Person (excluding the Notes Collateral Agent or the Trustee) who
they shall designate to possess, own, operate or manage, as the case may be, the property.
(r) Upon
the receipt by the Notes Collateral Agent of a written request of the Issuer signed by an Officer (a “Collateral Document Order”),
the Notes Collateral Agent is hereby authorized to execute and enter into, and shall execute and enter into, without the further consent
of any Holder or the Trustee, any Collateral Document or amendment or supplement thereto to be executed after the Issue Date.
Such Collateral Document Order shall (i) state that it is being delivered to the Notes Collateral Agent pursuant to, and
is a Collateral Document Order referred to in, this Section 11.08(r), and (ii) instruct the Notes Collateral Agent to
execute and enter into such Collateral Document. Any such execution of a Collateral Document shall be at the direction
and expense of the Issuer, upon delivery to the Notes Collateral Agent of an Officer’s Certificate and Opinion of Counsel stating
that all conditions precedent to the execution and delivery of the Collateral Document have been satisfied. The Holders, by their
acceptance of the Notes, hereby authorize and direct the Notes Collateral Agent to execute such Collateral Documents.
(s) Subject
to the provisions of the applicable Collateral Documents and the First Lien Intercreditor Agreement, each Holder, by acceptance of the
Notes, agrees that the Notes Collateral Agent shall execute and deliver the First Lien Intercreditor Agreement and the Collateral Documents
to which it is a party and all agreements, documents and instruments incidental thereto, and act in accordance with the terms thereof.
For the avoidance of doubt, the Notes Collateral Agent shall have no discretion under this Indenture, the First Lien Intercreditor Agreement
or the Collateral Documents and shall not be required to make or give any determination, consent, approval, request or direction without
the written direction of the Holders of a majority in aggregate principal amount of the then outstanding Notes or the Trustee, as applicable.
(t) After
the occurrence and during the continuance of an Event of Default, the Trustee, acting at the direction of the Holders of a majority of
the aggregate principal amount of the Notes then outstanding, may direct the Notes Collateral Agent in connection with any action required
or permitted by this Indenture, the Collateral Documents or the First Lien Intercreditor Agreement.
(u) The
Notes Collateral Agent is authorized to receive any funds for the benefit of itself, the Trustee and the Holders distributed under the
Collateral Documents or the First Lien Intercreditor Agreement and to the extent not prohibited under the First Lien Intercreditor Agreement,
for turnover to the Trustee to make further distributions of such funds to itself, the Trustee and the Holders in accordance with the
provisions of Section 6.10 and the other provisions of this Indenture.
(v) In
each case that the Notes Collateral Agent may or is required hereunder or under any Collateral Document or the First Lien Intercreditor
Agreement to take any action (an “Action”), including without limitation to make any determination, to give consents,
to exercise rights, powers or remedies, to release or sell Collateral or otherwise to act hereunder or under any Collateral Document
or the First Lien Intercreditor Agreement, the Notes Collateral Agent may seek direction from the Holders of a majority in aggregate
principal amount of the then outstanding Notes. The Notes Collateral Agent shall not be liable with respect to any Action taken or omitted
to be taken by it in accordance with the direction from the Holders of a majority in aggregate principal amount of the then outstanding
Notes. If the Notes Collateral Agent shall request direction from the Holders of a majority in aggregate principal amount of the then
outstanding Notes with respect to any Action, the Notes Collateral Agent shall be entitled to refrain from such Action unless and until
the Notes Collateral Agent shall have received direction from the Holders of a majority in aggregate principal amount of the then outstanding
Notes, and the Notes Collateral Agent shall not incur liability to any Person by reason of so refraining.
(w) Notwithstanding
anything to the contrary in this Indenture or in any Collateral Document or the First Lien Intercreditor Agreement, in no event shall
the Notes Collateral Agent or the Trustee be responsible for, or have any duty or obligation with respect to, the recording, filing,
registering, perfection, protection or maintenance of the security interests or Liens intended to be created by this Indenture, the Collateral
Documents or the First Lien Intercreditor Agreement (including without limitation the filing or continuation of any UCC or PPSA financing
or continuation statements or similar documents or instruments), nor shall the Notes Collateral Agent or the Trustee be responsible for,
and neither the Notes Collateral Agent nor the Trustee makes any representation regarding, the validity, effectiveness or priority of
any of the Collateral Documents or the First Lien Intercreditor Agreement or the security interests or Liens intended to be created thereby.
(x) Before
the Notes Collateral Agent acts or refrains from acting in each case at the request or direction of the Issuer or the Guarantors, it
may require an Officer’s Certificate and an Opinion of Counsel, which shall conform to the provisions of Section 12.4. The
Notes Collateral Agent shall not be liable for any action it takes or omits to take in good faith in reliance on such certificate or
opinion.
(y) Notwithstanding
anything to the contrary contained herein, the Notes Collateral Agent shall act pursuant to the instructions of the Holders and the Trustee
solely with respect to the Collateral Documents and the Collateral.
(z) The
rights, privileges, benefits, immunities, indemnities and other protections given to the Trustee are extended to, and shall be enforceable
by, the Notes Collateral Agent as if the Notes Collateral Agent were named as the Trustee herein and the Collateral Documents were named
as this Indenture herein.
Article XII
MISCELLANEOUS
Section 12.1. Notices.
Any notice or communication shall be in writing
in the English language and delivered in person or mailed by first-class mail, facsimile or overnight air courier guaranteeing next day
delivery, addressed as follows (unless the Issuer and the Trustee agree to another method of delivery):
if to the Issuer or the Guarantors:
GFL Environmental Inc.
100 New Park Place, Suite 500
Vaughan, Ontario L4K 0H9
Canada
Attention: Patrick Dovigi
Email: pdovigi@gflenv.com
Facsimile: (416) 673-9385
if to the Trustee or the Notes Collateral Agent:
Computershare Trust Company, N.A.
6200 S. Quebec Street,
Greenwood Village, CO 80111
Attention: Corporate Trust Department – GFL
Email: corporate.trust@computershare.com; jerry.urbanek@computershare.com
Facsimile: (303) 262-0608
with a copy to:
Computershare Trust Company, N.A.
480 Washington Boulevard, Jersey City, NJ 07310
Attention: General Counsel
Facsimile: (201) 680-4610
The Issuer or the Guarantors, by notice to the
Trustee, or the Trustee or the Notes Collateral Agent by notice to the Issuer and the Guarantors, may designate additional or different
addresses for subsequent notices or communications.
Any notice or communication to a Holder shall
be delivered to the Holder at the Holder’s address as it appears on the registration books of the Registrar by first class mail,
certified or registered, return receipt requested, or by overnight air courier guaranteeing next day delivery to its address shown on
the register kept by the Registrar. Notwithstanding any other provisions of this Indenture or any Note, where this Indenture or any Note
provides for notice of any event (including any notice of redemption) to a Holder of a Global Note (whether by mail or otherwise), such
notice shall be sufficiently given if given to the Depositary for such Note (or its designee) pursuant to the customary procedures of
such Depositary.
All notices and communications shall be deemed
to have been duly given; at the time delivered by hand, if personally delivered; five (5) Business Days after being deposited in
the mail, postage prepaid, if mailed; (other than those sent to Holders) when confirmation is received, if facsimiled; and the next Business
Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next day delivery.
Failure to deliver a notice or communication to
a Holder or any defect in it shall not affect its sufficiency with respect to other Holders. If a notice or communication is delivered
in the manner provided above, it is duly given, whether or not the addressee receives it.
Section 12.2. Communication
by Holders with Other Holders.
Holders may communicate with other Holders with
respect to their rights under this Indenture or the Notes pursuant to the Trust Indenture Act Section 312(b) with the same
effect as if this Indenture were qualified under the Trust Indenture Act.
Section 12.3. Certificate
and Opinion as to Conditions Precedent.
Upon any request or application by the Issuer
to the Trustee to take or refrain from taking any action under this Indenture or any Collateral Document, the Issuer shall furnish to
the Trustee or, if such action relates to a Collateral Document, the Notes Collateral Agent: (i) an Officer’s Certificate
(which shall include the statements set forth in Section 12.4 hereof) stating that, in the opinion of the signers, all conditions
precedent, if any, provided for in this Indenture or such Collateral Document, as applicable, relating to the proposed action have been
complied with; and (ii) an Opinion of Counsel (which shall include the statements set forth in Section 12.4 hereof)
stating that, in the opinion of such counsel, all such conditions precedent have been complied with.
Section 12.4. Statements
Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance
with a covenant or condition provided for in this Indenture shall include: (i) a statement that the individual making such certificate
or opinion has read such covenant or condition; (ii) 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; (iii) a statement that, in the opinion
of such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to
whether or not such covenant or condition has been complied with; and (iv) a statement as to whether or not, in the opinion of such
individual, such covenant or condition has been complied with.
Section 12.5. When
Notes Disregarded.
In determining whether the Holders of the required
principal amount of Notes have concurred in any direction, waiver or consent, Notes owned by the Issuer or by any Person directly or
indirectly controlling or controlled by or under direct or indirect common control with the Issuer shall be disregarded and deemed not
to be outstanding, except that, for the purpose of determining whether the Trustee shall be protected in relying on any such direction,
waiver or consent, only Notes which a Trust Officer of the Trustee actually knows are so owned shall be so disregarded. Also, subject
to the foregoing, only Notes outstanding at the time shall be considered in any such determination.
Section 12.6. Legal
Holidays.
A “Legal Holiday” is a day
that is not a Business Day. Notwithstanding any other provisions of this Indenture, the Notes, the Collateral Documents or the Note Guarantees,
if a payment date is a Legal Holiday, payment shall be made on the next succeeding day that is not a Legal Holiday, and no interest shall
accrue for the intervening period. If a record date is a Legal Holiday, the record date shall not be affected.
Section 12.7. Governing
Law; Submission to Jurisdiction.
(a) THIS
INDENTURE, THE NOTES AND THE NOTE GUARANTEES ARE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(b) The
Issuer, each of the Guarantors and the Trustee agree that any suit, action or proceeding arising out of or based upon this Indenture,
the Notes or the Note Guarantees may be instituted in any State or U.S. federal court located in The City of New York and County of New
York, and waives any objection that such party may now or hereafter have to the laying of venue of any such proceeding, and irrevocably
submits to the non-exclusive jurisdiction of such courts in any suit, action or proceeding. Nothing in this Indenture, the Notes or the
Collateral Documents shall affect any right that the Trustee, the Notes Collateral Agent or any Holder may otherwise have to bring any
suit, action or proceeding relating to this Indenture, the Notes, any Collateral Document, the Guarantees or the transactions contemplated
hereby against the Issuer or any Guarantor or its properties in the courts of any jurisdiction.
(c) The
Issuer has appointed, and each Guarantor incorporated, formed or otherwise organized outside of the United States (the “Foreign
Guarantors”) has appointed, GFL Environmental USA Inc., located at 26999 Central Park Blvd., Suite 200, Southfield, Michigan
48076, as their respective authorized agents (each, an “Authorized Agent”) upon whom process may be served in any
such action arising out of or based on this Indenture, the Notes, the Collateral Documents, the Note Guarantees or the transactions contemplated
hereby or thereby that may be instituted in any federal or state court in the Borough of Manhattan in the City of New York, New York,
expressly consents to the jurisdiction of any such court in respect of any such action, and waives any other requirements of or objections
to personal jurisdiction with respect thereto. Such appointment shall be irrevocable. The Issuer represents and warrants that its Authorized
Agent has agreed to act as such agent for service of process and agrees to take any and all action, including the filing of any and all
documents and instruments, which may be necessary to continue such appointment in full force and effect as stated above. Service of process
upon the Issuer’s Authorized Agent and written notice of such service to the Issuer shall be deemed, in every respect, effective
service of process upon the Issuer. Service of process upon a Foreign Guarantor’s Authorized Agent and written notice of such service
to such Foreign Guarantor shall be deemed, in every respect, effective service of process upon such Foreign Guarantor.
Section 12.8. Waiver
of Jury Trial.
EACH OF THE ISSUER, THE GUARANTORS, THE TRUSTEE
AND THE NOTES COLLATERAL AGENT HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL
BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 12.9. Force
Majeure.
In no event shall the Trustee or the Notes Collateral
Agent be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by,
directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or
terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of
utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts
which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
Section 12.10. No
Personal Liability of Directors, Officers, Employees and Shareholders.
No past, present or future director, officer,
employee, incorporator, member, partner, trustee, beneficiary or shareholder of the Issuer, any Guarantor or any of their Affiliates,
as such, will have any liability for any obligations of the Issuer or any Guarantor under the Notes, this Indenture, or the Note Guarantees,
the Collateral Documents, or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder
by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the
Notes.
Section 12.11. Successors.
All agreements of the Issuer and (except as otherwise
provided in Section 10.9 hereof) the Guarantors in this Indenture, the Notes, the Collateral Documents and the Note Guarantees shall
bind their respective successors. All agreements of the Trustee in this Indenture shall bind its successors.
Section 12.12. Multiple
Originals; Counterparts.
The parties may sign any number of copies of this
Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. One signed copy is enough to
prove this Indenture. This Indenture may be executed in multiple counterparts which, when taken together, shall constitute one instrument.
The exchange of copies of this Indenture and of signature pages by facsimile or PDF 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 PDF shall be deemed to be their original signatures for all purposes. The words “execution,”
“signed,” “signature,” “delivery,” and words of like import in or relating to this Indenture or any
document to be signed in connection with this Indenture shall be deemed to include electronic signatures, deliveries or the keeping of
records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature,
physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, and the parties hereto consent to conduct
the transactions contemplated hereunder by electronic means.
Section 12.13. Severability.
In case any provision in this Indenture or in
the Notes or the Collateral Documents or the Note Guarantees 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 12.14. Table
of Contents; Headings.
The table of contents, cross-reference sheet and
headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not intended to be
considered a part hereof and shall not modify or restrict any of the terms or provisions hereof.
Section 12.15. No
Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any
other indenture, loan or debt agreement of the Issuer or its Subsidiaries or of any other Person. Any such indenture, loan or debt agreement
may not be used to interpret this Indenture.
Section 12.16. Acts
of Holders.
(a) Any
request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by
the Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person
or by agents duly appointed in writing, and may be given or obtained in connection with a purchase of, or tender offer or exchange offer
for, outstanding Notes; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby expressly required, to the Issuer. Such instrument or instruments (and
the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Indenture and conclusive in favor of the Trustee and the Issuer if made in the manner provided in this Section 12.6.
(b) The
fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution
or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to such witness, notary or officer the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof
of authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same,
may also be proved in any other manner which the Trustee deems sufficient.
(c) Notwithstanding
anything to the contrary contained in this Section 12.6, the principal amount and serial numbers of Notes held by any Holder,
and the date of holding the same, shall be proved by the register of the Notes maintained by the Registrar as provided in Section 2.3.
(d) If
the Issuer shall solicit from the Holders any request, demand, authorization, direction, notice, consent, waiver or other Act, the Issuer
may, at its option, by or pursuant to a resolution of its Board of Directors, fix in advance a record date for the determination of Holders
entitled to give such request, demand, authorization, direction, notice, consent, waiver or other Act, but the Issuer shall have no obligation
to do so. Such record date shall be the record date specified in or pursuant to such Board Resolution, which shall be a date not earlier
than the date 30 days prior to the first solicitation of Holders generally in connection therewith or the date of the most recent list
of Holders forwarded to the Trustee prior to such solicitation pursuant to Section 2.5 and not later than the date such solicitation
is completed. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other Act may
be given before or after such record date, but only the Holders of record at the close of business on such record date shall be deemed
to be Holders for the purposes of determining whether Holders of the requisite proportion of the then outstanding Notes have authorized
or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other Act, and for that purpose
the then outstanding Notes shall be computed as of such record date; provided that no such authorization, agreement or consent
by the Holders on such record date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture
not later than eleven months after the record date.
(e) Any
request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Note shall bind every future Holder
of the same Note and the Holder of every Note issued upon the registration or transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee or the Issuer in reliance thereon, whether or not notation
of such action is made upon such Note.
(f) Without
limiting the foregoing, a Holder entitled hereunder to take any action hereunder with regard to any particular Note may do so itself
with regard to all or any part of the principal amount of such Note or by one or more duly appointed agents each of which may do so pursuant
to such appointment with regard to all or any part of such principal amount.
(g) For
purposes of this Indenture, any action by the Holders which may be taken in writing may be taken by electronic means or as otherwise
reasonably acceptable to the Trustee.
Section 12.17. Indemnification
for Non-U.S. Dollar Currency Judgments.
(a) The
obligations of the Issuer or any Guarantor to any Holder of Notes or the Trustee shall, notwithstanding any judgment in a currency (the
“Judgment Currency”) other than U.S. dollars (the “Agreement Currency”), be discharged only to
the extent that on the first Business Day following receipt by such Holder of Notes or the Trustee, as the case may be, of any amount
in the Judgment Currency, such Holder of Notes or the Trustee may in accordance with normal banking procedures purchase the Agreement
Currency with the Judgment Currency in New York, New York. If the amount of the Agreement Currency that could be so purchased is less
than the amount originally to be paid to such Holder of Notes or the Trustee, as the case may be, in the Agreement Currency, the Issuer
and each Guarantor agrees, as a separate obligation and notwithstanding such judgment, to pay to such Holder of Notes or the Trustee,
as the case may be, the difference, and if the amount of the Agreement Currency that could be so purchased exceeds the amount originally
to be paid to such Holder of Notes or the Trustee, as the case may be, such Holder of Notes or the Trustee, as the case may be, agrees
to pay to or for the account of the Issuer such excess, provided that such Holder of Notes or the Trustee, as the case may be,
shall not have any obligation to pay any such excess as long as a default by the Issuer or any Guarantor in its obligations in respect
of its obligations to pay when due any principal of, or interest, premium, if any, liquidated damages, if any, or Additional Amounts,
if any, on the Notes, or any other amounts due under this Indenture or the Note Guarantees has occurred and is continuing, in which case
such excess may be applied by such Holder of Notes or the Trustee, as the case may be, to such payment obligations.
(b) The
provisions of this Section 12.17 shall apply irrespective of any indulgence granted to the Issuer or any Guarantor from time
to time and shall continue in full force and effect notwithstanding any payment by or on behalf of the Issuer or any Guarantor, and any
amount due from the Issuer under this Section 12.17 will be due as a separate payment and shall not be affected by any judgment
obtained or claims made for any other sums due under or in respect of this Indenture.
Section 12.18. Interest
Act (Canada).
Solely for purposes of disclosure under the Interest
Act (Canada), the yearly rate of interest to which interest is calculated under a Note for any period in any calendar year (the “Calculation
Period”) is equivalent to the rate payable under a Note in respect of the Calculation Period multiplied by a fraction the numerator
of which is the actual number of days in such calendar year and the denominator of which is the actual number of days in the Calculation
Period.
[Signatures on following pages]
IN
WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
|
GFL ENVIRONMENTAL
INC. |
|
|
|
By: |
/s/
Patrick Dovigi |
|
|
Patrick Dovigi |
|
|
President |
|
|
|
|
I have the
authority to bind the above-listed corporation. |
[Signature Page to
Indenture]
6ISH HOLDINGS, INC.
ALABAMA DUMPSTER SERVICE, L.L.C.
AMERICAN WASTE, INC.
AMERICAN WASTE, LLC
ARBOR HILLS LANDFILL, INC.
AREA DISPOSAL SERVICE, INC.
BALDWIN PONTIAC LLC
BLACK CREEK RENEWABLE ENERGY, LLC
BRENT RUN LANDFILL, INC.
CLINTON LANDFILL, INC.
COBB COUNTY TRANSFER STATION, LLC
COULTER COMPANIES, INC.
COULTER CONSTRUCTION COMPANY
DAFTER SANITARY LANDFILL, INC.
EAGLE BLUFF LANDFILL, INC.
EAGLE POINT LANDFILL, LLC
EAGLE RIDGE LANDFILL, LLC
EMA DEVELOPMENT, LLC
EMERALD PARK LANDFILL, LLC
EMERALD WASTE SERVICES, LLC
ETC OF GEORGIA, LLC
EWS CENTRAL FLORIDA HAULING, LLC
GFL (CW) HOLDCO, LLC
GFL (TEXAS) REAL PROPERTY LLC
GFL BIRMINGHAM, LLC
GFL EARTH SERVICES, INC.
GFL ENVIRONMENTAL HOLDINGS (US), INC.
GFL ENVIRONMENTAL REAL PROPERTY, INC.
GFL ENVIRONMENTAL SERVICES USA, INC.
GFL EVERGLADES HOLDINGS LLC
GFL HOLDCO (US), LLC
GFL MUSKEGO LLC
GFL NORTH MICHIGAN LANDFILL, LLC
GFL OF VIRGINIA, LLC
GFL RECYCLING OF VIRGINIA, LLC
GFL RENEWABLES LLC
GFL SLIM JIM 2, LLC
GFL SLIM JIM 3, LLC
GFL SLIM JIM 4, LLC
GFL SOLID WASTE MIDWEST LLC
GFL SOLID WASTE SOUTHEAST LLC
GFL SOUTHWEST VIRGINIA, LLC
GFL US 11, LLC
GFL US 8, LLC
GFL WRANGLER HOLDCO US 2, INC.
GFL WRANGLER US 1, LLC
GFL WRANGLER US 2, LLC
[Signature Page to
Indenture]
GFL WRANGLER US 3, LLC
GFL WRANGLER US 4, LLC
GFL WRANGLER US 5, LLC
GFL WRANGLER US 6, LLC
GLACIER RIDGE LANDFILL, LLC
GRACE DISPOSAL SYSTEMS, L.L.C.
GWINNETT TRANSFER STATION, LLC
HAW RIVER LANDCO, LLC
HAZAR-BESTOS CORPORATION
HICKORY MEADOWS LANDFILL, LLC
HICKORY RIDGE LANDFILL, INC.
J&E RECYCLING, LLC
JONES SANITATION, L.L.C.
L&L DISPOSAL, LLC
LAKEWAY LANDCO, LLC
LAKEWAY SANITATION & RECYCLING C&D, LLC
LAKEWAY SANITATION & RECYCLING MSW, LLC
LAND & GAS RECLAMATION, INC.
LAURENS COUNTY LANDFILL, LLC
MALLARD RIDGE LANDFILL, INC.
MONTGOMERY TRANSFER STATION, LLC
N.E. LAND FILL, LLC
NORTHEASTERN ENVIRONMENTAL, LLC
NORTHEASTERN EXPLORATION, INC.
NORTHERN A-1 INDUSTRIAL SERVICES, L.L.C.
OPELIKA TRANSFER STATION, LLC
OTIS ROAD LANDFILL, LLC
PAULS VALLEY LANDFILL, LLC
PDC SERVICES, INC.
PEORIA CITY/COUNTY LANDFILL, INC.
PH LAND, LLC
RED ROCK DISPOSAL, LLC
RENEWABLE ENERGY - EAGLE POINT, LLC
ROCK 'N BAR D, LLC
SAFEGUARD LANDFILL MANAGEMENT, LLC
SAMPSON COUNTY DISPOSAL, LLC
SEVEN MILE CREEK LANDFILL, LLC
SMYRNA TRANSFER STATION, LLC
SOIL SAFE OF CALIFORNIA, INC.
SOIL SAFE, INC.
SOONER WASTE, L.L.C.
SOUTHEASTERN DISPOSAL, LLC
SPRINT RECYCLING CENTER – NORTHEAST, LLC
STONE’S THROW LANDFILL, LLC
SUNSHINE RECYCLING, INC.
SWD SPECIALTIES, LLC
TALLASSEE WASTE DISPOSAL CENTER, INC.
[Signature Page to
Indenture]
TAZEWELL COUNTY LANDFILL, INC.
TOWN & COUNTRY DISPOSAL SOLID WASTE TRANSFER STATION,
LLC
TOWN & COUNTRY RECYCLING, LLC
TOWN AND COUNTRY DISPOSAL OF WESTERN MISSOURI, LLC
TRANSWASTE SERVICES, LLC
TRIPLE-S COMPOST, LLC
V.F. WASTE SERVICES, LLC
WAKE COUNTY DISPOSAL, LLC
WAKE RECLAMATION, LLC
WASTE CORPORATION OF ARKANSAS, LLC
WASTE CORPORATION OF KANSAS, LLC
WASTE CORPORATION OF MISSOURI, LLC
WASTE CORPORATION OF TENNESSEE, LLC
WASTE INDUSTRIES ATLANTA, LLC
WASTE INDUSTRIES OF TENNESSEE, LLC
WASTE INDUSTRIES USA, LLC
WASTE INDUSTRIES, LLC
WASTE SERVICES OF DECATUR, LLC
WCA - KANSAS CITY TRANSFER, LLC
WCA GP LLC
WCA MANAGEMENT GENERAL, INC.
WCA MANAGEMENT LIMITED, INC.
WCA OF ALABAMA, L.L.C.
WCA OF CENTRAL FLORIDA, INC.
WCA OF CHICKASHA, LLC
WCA OF OKLAHOMA, LLC
WCA TEXAS MANAGEMENT GENERAL, INC.
WCA WASTE CORPORATION
WCA WASTE SYSTEMS, INC.
WELCOME ALL TRANSFER STATION, LLC
WEXFORD COUNTY LANDFILL, LLC
WEXFORD WATER TECHNOLOGIES, LLC
WI BURNT POPLAR TRANSFER, LLC
WI HIGH POINT LANDFILL, LLC
WI SHILOH LANDFILL, LLC
WILMINGTON LANDCO, LLC
WOOD ISLAND WASTE MANAGEMENT, INC.
WRANGLER HOLDCO CORP.
WRH GAINESVILLE HOLDINGS, LLC
WRH GAINESVILLE, LLC
WRH ORANGE CITY, LLC
ZION LANDFILL, INC.
[Signature Page to
Indenture]
| GFL FLORIDA HOLDING COMPANY LLC |
| BUNN EXCAVATING, INC. |
| HOOSIER LANDFILL, INC. |
| BUNN BOX, LLC |
| each as Guarantor |
|
By: |
/s/
Patrick Dovigi |
|
|
Patrick Dovigi |
|
|
President
|
[Signature Page to
Indenture]
| GFL ENVIRONMENTAL USA INC. |
| as Guarantor |
|
By: |
/s/
Patrick Dovigi |
|
|
Patrick Dovigi |
|
|
President
|
[Signature Page to Indenture]
|
1877984 ONTARIO INC. |
|
MID CANADA ENVIRONMENTAL SERVICES LTD. |
|
GFL MARITIMES INC. |
|
1248544 ONTARIO LTD. |
|
2481638 ONTARIO INC. |
|
2779572 ONTARIO INC. |
|
2779573 ONTARIO INC. |
|
2779574 ONTARIO INC. |
|
2289587 ALBERTA ULC |
|
ACCUWORX INC. |
|
SMITHRITE EQUIPMENT PAINTING & REPAIR LTD. |
|
2313159 ALBERTA ULC |
|
2353961 ALBERTA ULC |
|
2354010 ALBERTA ULC |
|
TERRATEC ENVIRONMENTAL LTD. |
|
GFL UTILITY SERVICES INC. |
|
CENTRE DE TRI D’ARGENTEUIL INC. |
|
GFL ENVIRONMENTAL 2023 INC. |
|
GREENISLE ENVIRONMENTAL INC. |
|
NORTH ROAD HOLDINGS LTD. |
|
SUPERIOR SANITATION SERVICES LTD. |
|
each as Guarantor |
|
By: |
/s/
Patrick Dovigi |
|
|
Patrick Dovigi |
|
|
President
|
|
|
|
|
I have the authority to
bind each of the above-listed corporations. |
[Signature Page to
Indenture]
|
NORTH ANDREWS EMPLOYMENT PARK, LLC |
|
SOUTH ANDREWS EMPLOYMENT PARK, LLC |
|
each as Guarantor |
|
By: |
/s/
Patrick Dovigi |
|
|
Patrick Dovigi |
|
|
Manager
|
[Signature Page to Indenture]
|
SPRINT FORT BEND COUNTY LANDFILL, L.P. |
|
SPRINT MONTGOMERY COUNTY LANDFILL, LP |
|
SPRINT WASTE OF TEXAS, LP |
|
SPRINT WASTE SERVICES LP |
|
each as Guarantor |
| By: | WCA GP, LLC,
its General Partner |
|
By: |
/s/
Patrick Dovigi |
|
|
Patrick Dovigi |
|
|
President
|
[Signature Page to Indenture]
|
GFL SLIM JIM 5, L.P. |
|
GFL US 7, L.P. |
|
GFL WRANGLERS US, L.P. |
|
GFL US 9, L.P. |
|
each as Guarantor |
| By: | 2779573 Ontario, Inc.,
its General Partner |
|
By: |
/s/
Patrick Dovigi |
|
|
Patrick Dovigi |
|
|
President
|
|
|
|
|
I have the authority to
bind the above-listed corporation. |
[Signature Page to
Indenture]
|
WASTE CORPORATION OF TEXAS, L.P. |
|
FORT BEND REGIONAL LANDFILL, L.P. |
|
RUFFINO HILLS TRANSFER STATION, L.P. |
|
WCA MANAGEMENT COMPANY, LP |
|
each as Guarantor |
| By: | WCA Texas Management
General Inc., its General Partner |
|
By: |
/s/
Patrick Dovigi |
|
|
Patrick Dovigi |
|
|
President
|
[Signature Page to Indenture]
| |
| TOTTENHAM AIRFIELD CORPORATION INC. |
| MOUNT ALBERT PIT INC. |
| each as Guarantor |
|
By: |
/s/
John Bailey |
|
|
John Bailey |
|
|
President and Secretary |
|
|
|
|
I have the authority to bind each of the above-listed corporations. |
[Signature Page to Indenture]
| COMPUTERSHARE TRUST COMPANY, N.A.,
|
| as Trustee |
|
By: |
/s/
Jerry Urbanek |
|
|
Name: Jerry Urbanek |
|
|
Title: Trust Officer |
|
COMPUTERSHARE TRUST COMPANY, N.A.,
as Notes Collateral Agent |
|
|
|
By: |
/s/
Jerry Urbanek |
|
|
Name: Jerry Urbanek |
|
|
Title: Trust Officer |
[Signature Page to Indenture]
SCHEDULE I
MATERIAL REAL PROPERTY
| 1. | 5 Brydon Drive, Toronto, ON |
| 2. | 1070 Toy Avenue, Pickering, ON |
| 3. | 560 Seaman Street, Stoney Creek, ON |
| 4. | 39-41 Fenmar Drive, Toronto, ON |
| 5. | 8409 15 St. NW, Edmonton, AB |
| 6. | 6200 Elmridge, 6237, 6301, 6329 and 6363 Sims Drive, Sterling Heights,
Michigan |
| 7. | 10690 W. Six Mile Road, Northville, MI |
| 8. | W124 S10629 S. 124th Street, Muskego, WI |
| 9. | N7296 County Rd V, WI 53032 |
EXHIBIT A
[FACE OF NOTE]
[Insert the Global Note Legend, if applicable
pursuant to the provisions of the Indenture]
[Insert the Private Placement Legend, if applicable
pursuant to the provisions of the Indenture]
[Insert the ERISA Legend]
[Insert the Canadian Legend, if applicable pursuant
to the provisions of the Indenture]
GFL ENVIRONMENTAL INC.
[RULE 144A][REGULATION S] [GLOBAL] NOTE
Representing [up to]
US$[___________]
6.750% SENIOR SECURED NOTES DUE 2031
CUSIP NO [36168QAQ7]1
[C39217AQ4]2
No. | Initial
Principal Amount US$ |
GFL
ENVIRONMENTAL INC., a corporation organized under the laws of the Province of Ontario, promises to pay to ,
or registered assigns, the principal sum of U.S.
dollars on January 15, 2031 [, or such other principal amount as is indicated on the attached schedule]3.
Interest Payment Dates: January 15 and July 15,
commencing January 15, 2024.
Record Dates: January 1 and July 1.
Additional provisions of this Note are set forth
on the other side of this Note.
1 For Securities sold in reliance on Rule 144A.
2 For Securities sold in reliance on Regulation S.
3 For Global Securities
IN WITNESS WHEREOF, the Issuer has caused this
instrument to be duly executed.
Dated: , 20
|
GFL ENVIRONMENTAL
INC. |
|
|
|
|
|
By: |
|
|
|
Name: |
|
|
Title: |
This is one of the Notes referred to in the within-mentioned
Indenture:
Dated: ,
20
|
COMPUTERSHARE
TRUST COMPANY, N.A., as Trustee |
|
|
|
|
|
By: |
|
|
|
Name: |
|
|
Title: |
[BACK OF NOTE]
GFL ENVIRONMENTAL INC.
6.750% SENIOR SECURED NOTES DUE 2031
Capitalized terms used herein have the meanings
assigned to them in the Indenture referred to below unless otherwise indicated.
1. Interest.
GFL Environmental Inc., a corporation organized under the laws of the Province of Ontario (such Person, and its respective successors
and assigns under the Indenture hereinafter referred to, being herein called the “Issuer”), promises to pay interest
on the outstanding principal amount of this Note at the rate of 6.750% per annum from December 6, 20231
until maturity. The Issuer will pay interest semi-annually in arrears on January 15 and July 15 of each year,
or if any such day is not a Business Day, on the next succeeding Business Day (each, an “Interest Payment Date”);
provided, that the first Interest Payment Date will be January 15, 2024. Interest on the Notes will accrue from the most
recent date to which interest has been paid or, if no interest has been paid, from the date of issuance; provided that if there
is no existing Default in the payment of interest, and if this Note is authenticated between a record date referred to on the face hereof
and the next succeeding Interest Payment Date, interest will accrue from such next succeeding Interest Payment Date. The Issuer will
pay, to the extent lawful, interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal
and premium, if any, at the rate then in effect; it will pay, to the extent lawful, interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest (without regard to any applicable grace periods) from time to
time on demand at the same rate as on overdue principal. Interest will be computed on the basis of a 360-day year of twelve 30-day months.
Solely for purposes of disclosure under the Interest Act (Canada), the yearly rate of interest to which interest is calculated under
a Note for any period in any calendar year (the “Calculation Period”) is equivalent to the rate payable under a Note
in respect of the Calculation Period multiplied by a fraction the numerator of which is the actual number of days in such calendar year
and the denominator of which is the actual number of days in the Calculation Period.
2. Method
of Payment. The Issuer will pay interest on the Notes (except Defaulted Interest) to the Persons who are registered Holders of Notes
at the close of business on the January 1 or July 1 next preceding the Interest Payment Date, even if such Notes are cancelled
after such record date and on or before such Interest Payment Date, except as provided in Section 2.11 of the Indenture with respect
to Defaulted Interest. The Notes will be payable as to principal, premium, if any, and interest by, in the case of Notes represented
by the Global Notes, wire transfer of immediately available funds to the accounts specified by The Depository Trust Company or its nominee
and, in the case of Definitive Notes, wire transfer of immediately available funds to the accounts specified by the Holders of the Notes
or, if no such account is specified, by mailing a check to each such Holder at its address set forth in the register of Holders. Such
payment will be in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public
and private debts. Holders must surrender their Notes to the Paying Agent to collect payments of principal and premium, if any.
1 In the case of Notes issued on the Issue Date.
3. Paying
Agent and Registrar. Initially, Computershare Trust Company, N.A. will act as Paying Agent and Registrar. The Issuer may appoint
and change any Paying Agent or Registrar without prior notice to any Holder, and the Issuer or any of its Subsidiaries may act as Paying
Agent or Registrar, all in accordance with the Indenture.
4. Indenture.
The Issuer issued the Notes under an Indenture, dated as of December 6, 2023 (as amended, supplemented or otherwise modified from
time to time, the “Indenture”), among the Issuer, the Guarantors and Computershare Trust Company, N.A., as the Trustee
and Notes Collateral Agent. The Notes are subject to all such terms, and Holders are referred to the Indenture for a statement of such
terms. To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions of the Indenture
shall govern and be controlling (to the extent permitted by law). The Notes are secured obligations of the Issuer. The Issuer initially
has issued US$1,000,000,000 in aggregate principal amount of Notes. The Issuer may issue Additional Notes under the Indenture, subject
to Section 4.3 of the Indenture.
5. Optional
Redemption.
(a) On
or after January 15, 2027, the Issuer may, on any one or more occasions, redeem all or a part of the Notes at any time or from time
to time, at the Redemption Prices (expressed as percentages of principal amount) set forth below plus accrued and unpaid interest thereon,
if any, on the Notes redeemed, to, but excluding, the applicable Redemption Date (subject to the right of Holders of record on the relevant
Record Date to receive interest due on an Interest Payment Date falling on or prior to the Redemption Date), if redeemed during the twelve-month
period beginning on January 15 of the years indicated below:
Year | |
Percentage | |
2027 | |
| 103.375 | % |
2028 | |
| 101.688 | % |
2029
and thereafter | |
| 100.000 | % |
(b) At
any time prior to January 15, 2027, the Issuer may on any one or more occasions redeem up to an aggregate of 40% of the aggregate
principal amount of Notes (including, for greater certainty, any Additional Notes) then outstanding under the Indenture at a Redemption
Price (as calculated by the Issuer) equal to (i) 106.750% of the aggregate principal amount thereof, with an amount equal to or
less than the net cash proceeds from one or more Equity Offerings to the extent such net cash proceeds are received by or contributed
to the Issuer plus (ii) accrued and unpaid interest thereon, if any, to, but excluding, the Redemption Date (subject to the right
of Holders of record on the relevant Record Date to receive interest due on an Interest Payment Date that is on or prior to the Redemption
Date); provided that: (1) at least 50% of the aggregate principal amount of the Notes originally issued under the Indenture
on the Issue Date remain outstanding immediately after the occurrence of such redemption (but excluding any Additional Notes issued under
the Indenture after the Issue Date); and (2) each such redemption occurs within 180 days of the date of the closing of any such
Equity Offering.
(c) In
addition, at any time prior to January 15, 2027, the Issuer may on any one or more occasions redeem all or a part of the Notes at
a Redemption Price equal to the sum of: (i) 100% of the principal amount thereof, plus (ii) the Applicable Premium at the Redemption
Date, plus (iii) accrued and unpaid interest, if any, to, but excluding, the applicable Redemption Date (subject to the right of
Holders of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date falling on or prior to the
Redemption Date).
(d) If,
as a result of:
| (1) | any
amendment to, or change in, the laws or treaties (or regulations or rulings promulgated thereunder)
of any Relevant Taxing Jurisdiction which is announced and becomes effective on or after
the Issue Date (or, where a jurisdiction in question does not become a Relevant Taxing Jurisdiction
until a later date, such later date); or |
| (2) | any
amendment to, or change in, the existing official position or the introduction of an official
position regarding the application, interpretation, administration or assessing practices
of any such laws, regulations or rulings of any Relevant Taxing Jurisdiction, or a judicial
decision rendered by a court of competent jurisdiction (whether or not made, taken or reached
with respect to the Issuer or any of the Guarantors) which is announced and becomes effective
on or after the Issue Date (or, where a jurisdiction in question does not become a Relevant
Taxing Jurisdiction until a later date, such later date), |
the
Issuer or any Guarantor has become or will become obligated to pay, on the next date on which any amount would be payable with respect
to the Notes or a Note Guarantee, as applicable, Additional Amounts or indemnification payments as described under Section 4.21
of the Indenture with respect to the Relevant Taxing Jurisdiction, which payment the Issuer or the Guarantor cannot avoid with the use
of reasonable measures available to it (including making payment through a paying agent located in another jurisdiction), then the Issuer
may, at its option, redeem all but not less than all of the Notes, upon not more than 60 days’ notice prior to the earliest date
on which the Issuer or a Guarantor, as applicable, would be required to pay such Additional Amounts or indemnification payments, at a
redemption price of 100% of their principal amount, plus accrued and unpaid interest, if any, to the redemption date. Prior to the giving
of any notice of redemption described in Section 3.8 of the Indenture, the Issuer will deliver to the Trustee a written opinion
of independent legal counsel to the Issuer or the Guarantor, as applicable, of recognized standing to the effect that the Issuer or the
Guarantor, as applicable, has or will become obligated to pay such Additional Amounts or indemnification payments as a result of an amendment
or change as set forth in Section 3.8 of the Indenture.
(e) The
Issuer may redeem all of the Notes that remain outstanding, at the Redemption Price and subject to the terms and conditions, set forth
in Section 4.11(i) of the Indenture.
Unless
the Issuer defaults in the payment of the redemption price, interest will cease to accrue on the Notes or portions thereof called for
redemption on the applicable redemption date.
Except
as set forth in paragraph 6, the Issuer is not required to make mandatory redemption or sinking fund payments with respect to the Notes.
6. Mandatory
Redemption.
Except
as provided in the Indenture, the Issuer shall not be required to make any mandatory or sinking fund payments with respect to the Notes.
7. Denominations,
Transfer, Exchange. The Notes are in registered form without coupons in minimum denominations of US$2,000 and integral multiples
of US$1,000 in excess thereof. The Issuer shall notify the Trustee and any Holder promptly of a change to the minimum denomination of
any Notes. The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The Registrar or the Trustee
may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Issuer may require a Holder
to pay any tax or similar charge or other fee required by law and payable in connection therewith or permitted by the Indenture. The
Issuer is not required to exchange or register the transfer of any Note or portion of a Note selected for redemption, except for the
unredeemed portion of any Note being redeemed in part. Also, the Issuer is not required to exchange or register the transfer of any Notes
for a period of 15 days before the day of any selection of Notes to be redeemed or during the period between a record date and the corresponding
Interest Payment Date.
8. Persons
Deemed Owners. The registered Holder of a Note may be treated as its owner for all purposes. Only registered Holders shall have rights
hereunder.
9. Amendment,
Supplement and Waiver. Subject to certain exceptions, the Indenture, the Notes and the Collateral Documents may be amended or supplemented
with the written consent of the Holders of at least a majority in outstanding principal amount of the Notes, and any existing Default
or compliance with any provision of the Indenture, the Notes, the Note Guarantees or the Collateral Documents may be waived with the
written consent of the Holders of at least a majority in outstanding principal amount of the Notes. Without the consent of any Holder
of a Note, the Indenture, the Notes, the Note Guarantees or the Collateral Documents may be amended or supplemented with respect to certain
matters specified in the Indenture.
10. Defaults.
If an Event of Default shall occur and be continuing, the principal of all the Notes may be declared (or will become) due and payable
in the manner and with the effect provided in the Indenture.
11. Defeasance.
The Indenture contains provisions for defeasance of (i) the entire indebtedness of the Issuer on this Note and (ii) certain
restrictive covenants and the related Events of Default, subject to compliance by the Issuer with certain conditions set forth in the
Indenture, which provisions apply to this Note.
12. Note
Guarantees. The Issuer’s obligations under the Notes are fully and unconditionally guaranteed, jointly and severally, by the
Guarantors.
13. Authentication.
This Note will not be valid until authenticated by the manual or electronic signature of the Trustee or an Authenticating Agent.
14. Abbreviations.
Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=tenants
by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (=Custodian), and U/G/M/A
(=Uniform Gifts to Minors Act).
15. Governing
Law. THE INDENTURE, THIS NOTE AND THE NOTE GUARANTEES ARE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
16. CUSIP
Numbers. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Issuer has
caused CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP, ISIN or similar numbers in notices of redemption
as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained
in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.
The
Issuer will furnish to any Holder upon written request and without charge a copy of the Indenture.** Requests may be made
to:
GFL
Environmental Inc.
100 New Park Place, Suite 500
Vaughan, Ontario L4K 0H9
Canada
Attention: Patrick Dovigi
17. Security.
The Notes and the Note Guarantees will be secured by the Collateral on the terms and subject to the conditions set forth in the Indenture
and the Collateral Documents. The Trustee and the Notes Collateral Agent, as the case may be, hold the Collateral in trust for the benefit
of the Notes Secured Parties, in each case pursuant to the Collateral Documents and the First Lien Intercreditor Agreement. Each Holder,
by accepting this Note, consents and agrees to the terms of the Collateral Documents (including the provisions providing for the foreclosure
and release of Collateral) and the First Lien Intercreditor Agreement, each as may be in effect or may be amended from time to time in
accordance with their terms and the Indenture, and authorizes and directs the Notes Collateral Agent to enter into the Collateral Documents
and the First Lien Intercreditor Agreement on the Issue Date, and the Collateral Documents at any time after the Issue Date, if applicable,
and to perform its obligations and exercise its rights thereunder in accordance therewith.
| *Delete | for
Additional Securities. |
ASSIGNMENT
FORM
To
assign this Note, fill in the form below:
| (I) |
or (we) assign and transfer this
Note to: | |
| |
| (Insert assignee’s
legal name) |
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(Insert
assignee’s soc. sec. or tax I. D. no.) |
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(Print
or type assignee’s name, address and zip code) |
and
irrevocably appoint___________________________________________________________
to
transfer this Note on the books of the Issuer. The agent may substitute another to act for him.
Date: |
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Your Signature: |
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(Sign exactly as your
name
appears on the face of this Note) |
Signature
Guarantee:**__________________
| * | Participant
in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee). |
Option
of Holder to Elect Purchase
If
you want to elect to have this Note purchased by the Issuer pursuant to Section 4.7 or Section 4.11 of the Indenture, check
the appropriate box below:
¨ Section 4.7 ¨ Section 4.11
If
you want to elect to have only part of this Note purchased by the Issuer pursuant to Section 4.7 or Section 4.11 of the Indenture,
state the amount you elect to have purchased:
$______________
Date: |
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Your Signature: | |
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| (Sign
exactly as your name appears
on the face of this Note) |
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Tax
Identification No.: | |
If
Note is held through a custodian, name of the custodian through which the Note is held:
Name
of Beneficial Holder: ___________________________________________
DTC
Custodian’s Name: _____________________________________________
DTC
Custodian’s Participant Number:_______________
Custodian
Contact Name: ______________________________________
Address:
Phone Number:
Email Address:
Signature
Guarantee:** __________
| * | Signature
must be guaranteed by a participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor program acceptable
to the Trustee). |
[TO
BE ATTACHED TO GLOBAL NOTES]
SCHEDULE
OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
The
initial outstanding principal amount of this Global Note is US$___________. The following increases or decreases in this Global Note
have been made:
Date
of
Exchange |
Amount
of
Decrease in
Principal
Amount of this
Global Note |
Amount
of
Increase in
Principal
Amount of this
Global Note |
Principal
Amount of this
Global Note
Following such
Decrease or
Increase |
Signature
of
Authorized
Officer of
Trustee or
Notes
Custodian |
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EXHIBIT B
FORM OF
CERTIFICATE OF TRANSFER
GFL
Environmental Inc.
100 New Park Place, Suite 500
Vaughan, Ontario L4K 0H9
Canada
Computershare
Trust Company, N.A.
6200 S. Quebec Street
Greenwood
Village, CO 80111
Attention: Corporate Trust Department – GFL
Re:
GFL Environmental Inc. 6.750% Senior Secured Notes due 2031
CUSIP
Reference
is hereby made to the Indenture, dated as of December 6, 2023 (as amended, supplemented or otherwise modified from time to time,
the “Indenture”), among GFL Environmental Inc. (the “Issuer”), the guarantors named therein and
Computershare Trust Company, N.A., as trustee and as notes collateral agent. Capitalized terms used but not defined herein shall have
the meanings given to them in the Indenture.
,
(the “Transferor”) owns and proposes to transfer the Note[s] or beneficial interest in such Note[s] in the principal
amount of $ (the “Transfer”), to (the
“Transferee”). In connection with the Transfer, the Transferor hereby certifies that:
[CHECK
ALL THAT APPLY]
1. ¨ Check
if Transferee will take delivery of a beneficial interest in the 144A Global Note or a Restricted Definitive Note pursuant to Rule 144A.
The Transfer is being effected pursuant to and in accordance with Rule 144A under the Securities Act of 1933, as amended (the “Securities
Act”), and, accordingly, the Transferor hereby further certifies that the beneficial interest or Definitive Note is being transferred
to a Person that the Transferor reasonably believes is purchasing the beneficial interest or Definitive Note for its own account, or
for one or more accounts with respect to which such Person exercises sole investment discretion, and such Person and each such account
is a “qualified institutional buyer” within the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A,
and such Transfer is in compliance with any applicable blue sky securities laws of any state of the United States. Upon consummation
of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be
subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the 144A Global Note and/or the Restricted
Definitive Note and in the Indenture and the Securities Act.
2. ¨ Check
if Transferee will take delivery of a beneficial interest in the Regulation S Global Note or a Restricted Definitive Note pursuant to
Regulation S. The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities
Act and, accordingly, the Transferor hereby further certifies that (i) the Transfer is not being made to a Person in the United
States and (x) at the time the buy order was originated, the Transferee was outside the United States or such Transferor and any
Person acting on its behalf reasonably believed and believes that the Transferee was outside the United States or (y) the transaction
was executed in, on or through the facilities of a designated offshore securities market and neither such Transferor nor any Person acting
on its behalf knows that the transaction was prearranged with a buyer in the United States, (ii) no directed selling efforts have
been made in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S under the Securities
Act, (iii) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act and (iv) if
the Transfer is being made prior to the expiration of the Restricted Period, 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 Transfer in accordance with the terms
of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the Regulation S Global Note and/or the Restricted Definitive Note and in the Indenture and the
Securities Act.
3. ¨ Check
if Transferee will take delivery of a beneficial interest in a Restricted Global Note or a Restricted Definitive Note pursuant to any
provision of the Securities Act other than Rule 144A or Regulation S. The Transfer is being effected in compliance with the
transfer restrictions applicable to beneficial interests in Restricted Global Notes and Restricted Definitive Notes and pursuant to and
in accordance with the Securities Act (other than Rule 144A or Regulation S) and any applicable blue sky securities laws of any
state of the United States.
4. ¨ Check
if Transferee will take delivery of a beneficial interest in an Unrestricted Global Note or of an Unrestricted Definitive Note.
(a) ¨ Check
if Transfer is pursuant to Rule 144. (i) The Transfer is being effected pursuant to and in accordance with Rule 144
under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities
laws of any state of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the restrictions
on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on Restricted Definitive Notes and in
the Indenture.
(b) ¨ Check
if Transfer is Pursuant to Regulation S. (i) The Transfer is being effected pursuant to and in accordance with Rule 903
or Rule 904 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable
blue sky securities laws of any state of the United States and (ii) the restrictions on transfer contained in the Indenture and
the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject
to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on Restricted Definitive
Notes and in the Indenture.
(c) ¨ Check
if Transfer is Pursuant to Other Exemption. (i) The Transfer is requirements of the Securities Act other than Rule 144,
Rule 903 or Rule 904 and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky
securities laws of any State of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will not be subject to the restrictions
on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes or Restricted Definitive Notes and in the
Indenture.
This
certificate and the statements contained herein are made for your benefit and the benefit of the Issuer.
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[Insert Name of Transferor] |
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By: |
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Name: |
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Title: |
Dated:
EXHIBIT C
FORM OF
CERTIFICATE OF EXCHANGE
GFL
Environmental Inc.
100 New Park Place, Suite 500
Vaughan, Ontario L4K 0H9
Canada
Computershare
Trust Company, N.A.
6200 S. Quebec Street
Greenwood
Village, CO 80111
Attention: Corporate Trust Department – GFL
Re:
GFL Environmental Inc. 6.750% Senior Secured Notes due 2031
CUSIP
Reference
is hereby made to the Indenture, dated as of December 6, 2023 (as amended, supplemented or otherwise modified from time to time,
the “Indenture”), among GFL Environmental Inc. (the “Issuer”), the guarantors named therein and
Computershare Trust Company, N.A., as trustee and as notes collateral agent. Capitalized terms used but not defined herein shall have
the meanings given to them in the Indenture.
,
(the “Owner”) owns and proposes to exchange the Note[s] or beneficial interest in such Note[s] specified herein, in
the principal amount of $ (the
“Exchange”). In connection with the Exchange, the Owner hereby certifies that:
1. Exchange
of Restricted Definitive Notes or Beneficial Interests in a Restricted Global Note for Unrestricted Definitive Notes or Beneficial Interests
in an Unrestricted Global Note
(a) ¨ Check
if Exchange is from beneficial interest in a Restricted Global Note to beneficial interest in an Unrestricted Global Note. In connection
with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for a beneficial interest in an Unrestricted Global
Note in an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s
own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the
Global Notes and pursuant to and in accordance with the Securities Act of 1933, as amended (the “Securities Act”),
(iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest in an Unrestricted Global Note is being acquired in compliance
with any applicable blue sky securities laws of any state of the United States.
(b) ¨ Check
if Exchange is from beneficial interest in a Restricted Global Note to Unrestricted Definitive Note. In connection with the Exchange
of the Owner’s beneficial interest in a Restricted Global Note for an Unrestricted Definitive Note, the Owner hereby certifies
(i) the Definitive Note is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected
in compliance with the transfer restrictions applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities
Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the Definitive Note is being acquired in compliance with any applicable blue
sky securities laws of any state of the United States.
(c) ¨ Check
if Exchange is from Restricted Definitive Note to beneficial interest in an Unrestricted Global Note. In connection with the Owner’s
Exchange of a Restricted Definitive Note for a beneficial interest in an Unrestricted Global Note, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities
Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the beneficial interest is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
(d) ¨ Check
if Exchange is from Restricted Definitive Note to Unrestricted Definitive Note. In connection with the Owner’s Exchange of
a Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Unrestricted Definitive Note
is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the
restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance
with the Securities Act and (iv) the Unrestricted Definitive Note is being acquired in compliance with any applicable blue sky securities
laws of any state of the United States.
2. Exchange
of Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes for Restricted Definitive Notes or Beneficial Interests
in Restricted Global Notes
(a) ¨ Check
if Exchange is from beneficial interest in a Restricted Global Note to Restricted Definitive Note. In connection with the Exchange
of the Owner’s beneficial interest in a Restricted Global Note for a Restricted Definitive Note with an equal principal amount,
the Owner hereby certifies that the Restricted Definitive Note is being acquired for the Owner’s own account without transfer.
Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the Restricted Definitive Note issued will
continue to be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Definitive
Note and in the Indenture and the Securities Act.
(b) ¨ Check
if Exchange is from Restricted Definitive Note to beneficial interest in a Restricted Global Note. In connection with the
Exchange of the Owner’s Restricted Definitive Note for a beneficial interest in the [CHECK ONE]
¨ 144A Global Note, ¨ Regulation S Global Note with an equal principal
amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without
transfer and (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted
Global Notes and pursuant to and in accordance with the Securities Act, and in compliance with any applicable blue sky securities
laws of any state of the United States. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture,
the beneficial interest issued will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on
the relevant Restricted Global Note and in the Indenture and the Securities Act.
This
certificate and the statements contained herein are made for your benefit and the benefit of the Issuer.
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[Insert Name of Transferor] |
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By: |
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Name: |
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Title: |
Dated:
EXHIBIT D
FORM OF
SUPPLEMENTAL INDENTURE
TO
BE DELIVERED BY SUBSEQUENT GUARANTORS
SUPPLEMENTAL
INDENTURE (this “Supplemental Indenture”), dated as of [ ],
20__, among [Name of Subsequent Guarantor(s)] (the “New Guarantor”), a subsidiary of GFL Environmental Inc., a corporation
organized under the laws of the Province of Ontario [or its permitted successor] (the “Issuer”), the Issuer and Computershare
Trust Company, N.A., a national banking association, as trustee under the Indenture referred to herein (the “Trustee”)
and as notes collateral agent under the Indenture referred to herein (the “Notes Collateral Agent”). The New Guarantor
and the existing Guarantors are sometimes referred to collectively herein as the “Guarantors,” or individually as
a “Guarantor.”
W
I T N E S S E T H
WHEREAS,
the Issuer and the existing Guarantors have heretofore executed and delivered to the Trustee an indenture, dated as of December 6,
2023, among the Issuer, the Guarantors named therein and the Trustee (as further amended, supplemented or otherwise modified from time
to time, the “Indenture”), relating to the 6.750% Senior Secured Notes due 2031 (the “Notes”) of
the Issuer;
WHEREAS,
Section 4.9 of the Indenture in certain circumstances requires the Issuer to cause a Restricted Subsidiary (i) to become
a Guarantor by executing a supplemental indenture and (ii) to deliver an Officer’s Certificate and Opinion of Counsel to the
Trustee as provided in such Section; and
WHEREAS,
pursuant to Section 9.1 of the Indenture, the Issuer and the Trustee and Notes Collateral Agent are authorized to execute
and deliver this Supplemental Indenture to amend or supplement the Indenture without the consent of any Holder;
NOW
THEREFORE, to comply with the provisions of the Indenture and in consideration of the foregoing and for other good and valuable consideration,
the receipt of which is hereby acknowledged, the parties mutually covenant and agree for the equal and ratable benefit of the Holders
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 New Guarantor hereby agrees, jointly and severally, with all other Guarantors, to unconditionally Guarantee
to each Holder and to the Trustee the Obligations, to the extent set forth in the Indenture and subject to the provisions in the Indenture.
The obligations of the Guarantors to the Holders of Notes and to the Trustee pursuant to the Note Guarantees and the Indenture are expressly
set forth in Article X of the Indenture and reference is hereby made to the Indenture for the precise terms of the Note Guarantees.
3. Execution
and Delivery. The New Guarantor agrees that its Note Guarantee shall remain in full force and effect notwithstanding the absence
of an endorsement of any notation of such Note Guarantee on any Note.
4. Governing
Law. THIS SUPPLEMENTAL INDENTURE, THE INDENTURE, THE NOTES AND THE NOTE GUARANTEES ARE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
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. This Supplemental Indenture may be executed in multiple counterparts which, when taken together, shall
constitute one instrument. The exchange of copies of this Supplemental Indenture and of signature pages by facsimile or PDF transmission
shall constitute effective execution and delivery of this Supplemental Indenture as to the parties hereto and may be used in lieu of
the original Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed
to be their original signatures for all purposes.
6. Effect
of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof.
7. The
Trustee and the Notes Collateral Agent. Except as otherwise expressly provided herein, no duties, responsibilities or liabilities
are assumed, or shall be construed to be assumed, by the Trustee or the Notes Collateral Agent by reason of this Supplemental Indenture.
This Supplemental Indenture is executed and accepted by the Trustee and Notes Collateral Agent subject to all the terms and conditions
set forth in the Indenture with the same force and effect as if those terms and conditions were repeated at length herein and made applicable
to the Trustee and the Notes Collateral Agent, as applicable, with respect hereto.
8. Benefits
Acknowledged. The New Guarantor’s Note Guarantee is subject to the terms and conditions set forth in the Indenture. The
New Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by the Indenture
and this Supplemental Indenture and that the guarantee and waivers made by it pursuant to this Note Guarantee are knowingly made in contemplation
of such benefits.
9. Ratification
of Indenture; Supplemental Indentures Part of Indenture. Except as expressly amended hereby, the Indenture is in all respects
ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental
Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered
shall be bound hereby.
IN
WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first
above written.
Dated: ,
20__
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[NEW
GUARANTOR] |
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By: |
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Name: |
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Title: |
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GFL ENVIRONMENTAL
INC. |
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By: |
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Name: |
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Title: |
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COMPUTERSHARE
TRUST COMPANY, N.A., as Trustee and Notes Collateral Agent |
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Authorized
Signatory |
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