Exhibit
1.1
$300,000,000
Murphy Oil
USA, Inc.
5.625% Senior
Notes due 2027
Underwriting
Agreement
April 20,
2017
J.P. Morgan Securities LLC
As Representative of the
several Underwriters listed
in Schedule 1 hereto
c/o J.P. Morgan Securities LLC
383 Madison Avenue
New York, New York 10179
Ladies and Gentlemen:
Murphy
Oil USA, Inc., a Delaware corporation (the “
Company
”) and wholly-owned subsidiary of Murphy USA Inc., a Delaware
corporation (“
Holdings
”), proposes to issue and sell to the several Underwriters listed in Schedule 1 hereto
(the “
Underwriters
”), for whom you are acting as representative (the “
Representative
”),
$300,000,000 aggregate principal amount of its 5.625% Senior Notes due 2027 (the “
Securities
”). The Securities
will be jointly and severally guaranteed on an unsecured senior basis (the “
Guarantees
”) by Holdings and each
of the subsidiary guarantors listed on Schedule 2 hereto (together with Holdings, the “
Guarantors
”) and will
be issued pursuant to an Indenture to be dated as of April 25, 2017 (the “
Indenture
”) among the Company, the
Guarantors and U.S. Bank National Association, as trustee (the “
Trustee
”).
The Company
and the Guarantors hereby confirm their agreement with the several Underwriters concerning the purchase and sale of the Securities,
as follows:
1.
Registration
Statement
. The Company has prepared and filed with the Securities and Exchange Commission (the “
Commission
”)
under the Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder (collectively, the “
Securities
Act
”), a registration statement on Form S-3 (File No. 333-213416), as amended by Post-Effective Amendment No. 1, including
a prospectus, relating to the Securities. Such registration statement, as amended by Post-Effective Amendment No. 1 thereto, in
the form then filed with the Commission, including any further amendment thereto and the information, if any, deemed pursuant
to Rule 430A, 430B or 430C under the Securities Act to be part of the registration statement at the time of its effectiveness
(“
Rule 430 Information
”), is referred to herein as the “
Registration Statement
”; and as
used herein, the term “
Preliminary Prospectus
” means each prospectus included in such registration statement
(and any amendments thereto) before effectiveness, any prospectus filed with the Commission pursuant to Rule 424(a) under the
Securities
Act and the prospectus included in the Registration Statement at the time of its effectiveness that omits Rule 430 Information,
and the term “
Prospectus
” means the prospectus in the form first used (or made available upon request of purchasers
pursuant to Rule 173 under the Securities Act) in connection with confirmation of sales of the Securities. Any reference in this
agreement (this “
Agreement
”) to the Registration Statement, any Preliminary Prospectus or the Prospectus shall
be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Securities
Act, as of the effective date of the Registration Statement or the date of such Preliminary Prospectus or the Prospectus, as the
case may be and any reference to “
amend
”, “
amendment
” or “
supplement
”
with respect to the Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include
any documents filed after such date under the Securities Exchange Act of 1934, as amended, and the rules and regulations of the
Commission thereunder (collectively, the “
Exchange Act
”) that are deemed to be incorporated by reference therein.
Capitalized terms used but not defined herein shall have the meanings given to such terms in the Registration Statement and the
Prospectus.
At
or prior to 4:10 p.m. New York City time on April 20, 2017, the time when sales of the Securities were first made (the “
Time
of Sale
”), the Company shall have prepared the following information (collectively, the “
Time of Sale Information
”):
a Preliminary Prospectus dated April 20, 2017, and each “
free-writing prospectus
” (as defined pursuant to Rule
405 under the Securities Act) listed on Annex A hereto.
2.
Purchase
and Sale of the Securities
.
(a) The
Company agrees to issue and sell the Securities to the several Underwriters as provided in this Agreement, and each Underwriter,
on the basis of the representations, warranties and agreements set forth herein and subject to the conditions set forth herein,
agrees, severally and not jointly, to purchase from the Company the respective principal amount of Securities set forth opposite
such Underwriter’s name in Schedule 1 hereto at a price equal to 98.75% of the principal amount thereof plus accrued interest,
if any, from April 25, 2017 to the Closing Date (as defined below). The Company will not be obligated to deliver any of the Securities
except upon payment for all the Securities to be purchased as provided herein.
(b) The
Company understands that the Underwriters intend to make a public offering of the Securities as soon after the effectiveness of
this Agreement as in the judgment of the Representative is advisable, and initially to offer the Securities on the terms set forth
in the Time of Sale Information. The Company acknowledges and agrees that the Underwriters may offer and sell Securities to or
through any affiliate of an Underwriter and that any such affiliate may offer and sell Securities purchased by it to or through
any Underwriter.
(c) The
Company and the Guarantors acknowledge and agree that each Underwriter is acting solely in the capacity of an arm’s length
contractual counterparty to the Company and the Guarantors with respect to the offering of Securities contemplated hereby (including
in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the
Company, the Guarantors or any other person. Additionally, neither the Representative nor any other Underwriter is advising the
Company, the Guarantors or any other person as to any legal, tax, investment, accounting or regulatory matters in any
jurisdiction.
The Company and the Guarantors shall consult with their own advisors concerning such matters and shall be responsible for making
their own independent investigation and appraisal of the transactions contemplated hereby, and neither the Representative nor
any other Underwriter shall have any responsibility or liability to the Company or the Guarantors with respect thereto. Any review
by the Representative or any Underwriter of the Company, the Guarantors and the transactions contemplated hereby or other matters
relating to such transactions will be performed solely for the benefit of the Representative or such Underwriter, as the case
may be, and shall not be on behalf of the Company, the Guarantors or any other person.
3.
Payment
and Delivery
.
(a) Payment
for and delivery of the Securities will be made at the offices of Cravath, Swaine & Moore LLP, 825 Eighth Avenue, New York,
New York 10019 at 10:00 A.M., New York City time, on April 25, 2017, or at such other time or place on the same or such other
date, not later than the fifth business day thereafter, as the Representative and the Company may agree upon in writing. The time
and date of such payment and delivery is referred to herein as the “
Closing Date
”.
(b) Payment
for the Securities shall be made by wire transfer in immediately available funds to the account(s) specified by the Company to
the Representative, against delivery to the nominee of The Depository Trust Company (“
DTC
”), for the account
of the Underwriters, of one or more global notes representing the Securities (collectively, the “
Global Note
”),
with any transfer taxes payable in connection with the sale of the Securities duly paid by the Company. The Global Note will be
made available for inspection by the Representative not later than 1:00 P.M., New York City time, on the business day prior to
the Closing Date.
4.
Representations
and Warranties of the Company and the Guarantors
. The Company and the Guarantors jointly and severally represent and warrant
to each Underwriter that:
(a)
Preliminary
Prospectus.
No order preventing or suspending the use of any Preliminary Prospectus has been issued by the Commission, and
each Preliminary Prospectus, at the time of filing thereof, complied in all material respects with the Securities Act and did
not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading;
provided
that the Company and the
Guarantors make no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity
with information relating to any Underwriter furnished to the Company and the Guarantors in writing by such Underwriter through
the Representative expressly for use in any Preliminary Prospectus.
(b)
Time
of Sale Information
. The Time of Sale Information, at the Time of Sale did not, and at the Closing Date, will not, contain
any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
provided
that the Company and the Guarantors
make no representation or warranty with respect to any statements or omissions made
in reliance
upon and in conformity with information relating to any Underwriter furnished to the Company and the Guarantors in writing by
such Underwriter through the Representative expressly for use in the Preliminary Prospectus, the Time of Sale Information or the
Prospectus. No statement of material fact included in the Prospectus has been omitted from the Time of Sale Information and no
statement of material fact included in the Time of Sale Information that is required to be included in the Prospectus has been
omitted therefrom.
(c)
Issuer
Free Writing Prospectus
. The Company and the Guarantors (including their agents and representatives, other than the Underwriters
in their capacity as such) have not prepared, made, used, authorized, approved or referred to and will not prepare, make, use,
authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Securities Act) that
constitutes an offer to sell or solicitation of an offer to buy the Securities (each such communication by the Company and the
Guarantors or their agents and representatives (other than a communication referred to in clauses (i), (ii) and (iii) below) an
“
Issuer Free Writing Prospectus
”) other than (i) any document not constituting a prospectus pursuant to Section
2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act, (ii) the Preliminary Prospectus, (iii) the Prospectus,
(iv) the documents listed on Annex A hereto, including a pricing term sheet substantially in the form of Annex B hereto (the “
Pricing
Term Sheet
”), which constitute part of the Time of Sale Information, and (v) any electronic road show or other written
communications, in each case approved in writing in advance by the Representative. Each such Issuer Free Writing Prospectus complies
in all material respects with the Securities Act, has been or will be (within the time period specified in Rule 433) filed in
accordance with the Securities Act (to the extent required thereby) and, when taken together with the Preliminary Prospectus accompanying,
or delivered prior to delivery of, such Issuer Free Writing Prospectus, at the Time of Sale, did not, and at the Closing Date
will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading;
provided
that the Company and the
Guarantors make no representation or warranty with respect to any statements or omissions made in each such Issuer Free Writing
Prospectus in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing
by such Underwriter through the Representative expressly for use in any Issuer Free Writing Prospectus.
(d)
Registration
Statement and Prospectus.
The Registration Statement is an “automatic shelf registration statement” as defined
under Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years prior to the date hereof;
and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company. No order suspending the effectiveness of
the Registration Statement has been issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the
Securities Act against the Company or related to the offering has been initiated or threatened by the Commission; as of the applicable
effective date of the Registration Statement and any amendment thereto, the Registration Statement complied and will comply in
all material respects with the Securities Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations of
the Commission thereunder (collectively, the “
Trust Indenture Act
”), and did not and will not contain any untrue
statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the
statements therein not misleading;
and as of the
date of the Prospectus and any amendment or supplement thereto and as of the Closing Date, the Prospectus will not contain any
untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided
that the Company makes no representation
or warranty with respect to (i) that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification
(Form T-1) of the Trustee under the Trust Indenture Act or (ii) any statements or omissions made in reliance upon and in conformity
with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representative
expressly for use in the Registration Statement and the Prospectus and any amendment or supplement thereto.
(e)
Incorporated
Documents.
The documents incorporated by reference in each of the Registration Statement, the Prospectus and the Time of Sale
Information, when they were filed with the Commission, conformed in all material respects to the requirements of the Exchange
Act, and none of such documents contained any untrue statement of a material fact or omitted to state a material fact necessary
to make the statements therein, in the light of the circumstances under which they were made, not misleading; and any further
documents so filed and incorporated by reference in the Registration Statement, the Prospectus or the Time of Sale Information,
when such documents become effective or are filed with the Commission, as the case may be, will conform in all material respects
to the requirements of the Securities Act or the Exchange Act, as applicable, and will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
(f)
Financial
Statements.
The financial statements and the related notes thereto included or incorporated by reference in each of the Registration
Statement, the Time of Sale Information and the Prospectus comply in all material respects with the applicable requirements of
the Securities Act and the Exchange Act, as applicable, and present fairly the financial position of Holdings and its subsidiaries
as of the dates indicated and the results of their operations and the changes in their cash flows for the periods specified; such
financial statements have been prepared in conformity with generally accepted accounting principles (“
GAAP
”)
applied on a consistent basis throughout the periods covered thereby, and the supporting schedules included or incorporated by
reference in each of the Registration Statement, the Prospectus and the Time of Sale Information present fairly the information
required to be stated therein; and the other financial information included or incorporated by reference in each of the Registration
Statement, the Time of Sale Information and the Prospectus has been derived from the accounting records of Holdings, the Company
and its subsidiaries and presents fairly the information shown thereby. The interactive data in eXtensible Business Reporting
Language included or incorporated by reference in the Registration Statement, the Prospectus and the Time of Sale Information
fairly presents the information called for in all material respects and is prepared in accordance with the Commission’s
rules and guidelines applicable thereto.
(g)
No
Material Adverse Change.
Since the date of the most recent financial statements of Holdings included or incorporated by reference
in each of the Registration Statement, the Time of Sale Information and the Prospectus (i) there has not been any material change
in the capital stock or long-term debt of the Company or any of the Guarantors, or any dividend or distribution of any kind declared,
set aside for payment, paid or made by the
Company or
any of the Guarantors on any class of capital stock, or any material adverse change (or development involving a prospective material
adverse change) in the business, properties, earnings or financial condition of Holdings and its subsidiaries on a consolidated
basis; (ii) neither the Company nor any of the Guarantors has entered into any transaction or agreement that, individually or
in the aggregate, is material to the Company and the Guarantors taken as a whole or incurred any liability or obligation, direct
or contingent, that, individually or in the aggregate, is material to the Company and the Guarantors taken as a whole; and (iii)
neither the Company nor any of the Guarantors has sustained any loss or interference with its business or operations from fire,
explosion, flood, earthquake or other natural disaster or calamity, whether or not covered by insurance, or from any labor disturbance
or dispute or any action, order or decree of any court or arbitrator or governmental or regulatory authority, which might reasonably
be expected, individually or in the aggregate, to have a Material Adverse Effect (as defined below); except in each case as otherwise
disclosed in each of the Registration Statement, the Time of Sale Information and the Prospectus.
(h)
Organization
and Good Standing.
The Company and the Guarantors have been duly organized and are validly existing and in good standing under
the laws of their respective jurisdictions of organization, are duly qualified to do business and are in good standing in each
jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires such
qualification, and have all power and authority necessary to own or hold their respective properties and to conduct the businesses
in which they are engaged except where the failure to be so qualified, in good standing or have such power or authority would
not, individually or in the aggregate, have a material adverse effect on the business, properties, earnings, and financial condition
of the Company and the Guarantors taken as a whole or on the performance by the Company and the Guarantors of their obligations
under this Agreement, the Securities and the Guarantees (a “
Material Adverse Effect
”). Holdings and the Company
do not own or control, directly or indirectly, any corporation, association or other entity other than the subsidiaries listed
in Schedule 3 to this Agreement. None of the subsidiaries listed in Schedule 3 of this Agreement are significant subsidiaries
of Holdings or the Company.
(i)
Capitalization.
(i) Holdings has the capitalization as set forth in each of the Registration Statement, the Time of Sale Information and the
Prospectus under the heading “Capitalization”; (ii) all the outstanding shares of capital stock or other equity interests
of each subsidiary of Holdings have been duly and validly authorized and issued, are fully paid and non-assessable and are owned
directly or indirectly by Holdings, free and clear of any lien, charge, encumbrance, security interest, restriction on voting
or transfer or any other claim of any third party.
(j)
Due
Authorization.
The Company and each of the Guarantors have full right, power and authority to execute and deliver this Agreement,
the Securities, the Guarantees and the Indenture (collectively, the “
Transaction Documents
”) and to perform
their respective obligations hereunder and thereunder.
(k)
The
Indenture
. The Indenture has been duly authorized by the Company and each of the Guarantors and on the Closing Date will be
duly executed and delivered by the Company and each of the Guarantors and, when duly executed and delivered in accordance with
its terms by each of the parties thereto, will constitute a valid and legally binding agreement of the
Company and
each of the Guarantors enforceable against the Company and each of the Guarantors in accordance with its terms, except as enforceability
may be limited by applicable bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally
or by equitable principles relating to enforceability (collectively, the “
Enforceability Exceptions
”). The
Indenture will conform in all material respects to the requirements of the Trust Indenture Act.
(l)
The
Securities and the Guarantees
. The Securities have been duly authorized by the Company and, when duly executed, authenticated,
issued and delivered as provided in the Indenture and paid for as provided herein, will be duly and validly issued and outstanding
and will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their
terms, subject to the Enforceability Exceptions, and will be entitled to the benefits of the Indenture; and the Guarantees have
been duly authorized by each of the Guarantors and, when the Securities have been duly executed, authenticated, issued and delivered
as provided in the Indenture and paid for as provided herein, will be valid and legally binding obligations of each of the Guarantors,
enforceable against each of the Guarantors in accordance with their terms, subject to the Enforceability Exceptions, and will
be entitled to the benefits of the Indenture.
(m)
Underwriting
Agreement.
This Agreement has been duly authorized, executed and delivered by Holdings, the Company and each of the Guarantors.
(n)
Descriptions
of the Transaction Documents
. Each Transaction Document conforms in all material respects to the description thereof contained
in each of the Registration Statement, the Time of Sale Information and the Prospectus.
(o)
No
Violation or Default.
Neither the Company nor any Guarantor is (i) in violation of its charter or by-laws or similar organizational
documents; (ii) in default, and no event has occurred that, with notice or lapse of time or both, would constitute such a default,
in the due performance or observance of any term, covenant or condition contained in any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any Guarantor is a party or by which the Company or any Guarantor
is bound or to which any property, right or asset of the Company or any Guarantor is subject; or (iii) in violation of any law
or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except,
in the case of clauses (ii) and (iii) above, for any such default or violation that would not, individually or in the aggregate,
have a Material Adverse Effect.
(p)
No
Conflicts
. The execution, delivery and performance by the Company and each Guarantor of each of the Transaction Documents
to which each is a party, the issuance and sale of the Securities, the issuance of the Guarantees and compliance by the Company
and each Guarantor with the terms thereof and the consummation of the transactions contemplated by the Transaction Documents will
not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under,
result in the termination, modification or acceleration of, or result in the creation or imposition of any lien, charge or encumbrance
upon any property, right or asset of the Company or any Guarantor pursuant to, any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which the Company
or any Guarantor
is a party or by which the Company or any Guarantor is bound or to which any property, right or asset of the Company or any Guarantor
is subject, (ii) result in any violation of the provisions of the charter or by-laws or similar organizational documents of Holdings
or any of its subsidiaries or (iii) result in the violation of any law or statute or any judgment, order, rule or regulation of
any court or arbitrator or governmental or regulatory authority, except, in the case of clauses (i) and (iii) above, for any such
conflict, breach, violation, default, lien, charge or encumbrance that would not, individually or in the aggregate, have a Material
Adverse Effect.
(q)
No
Consents Required
. No consent, approval, authorization, order, registration or qualification of or with any court or arbitrator
or governmental or regulatory authority is, to the knowledge of the Company or any Guarantor, required for the execution, delivery
and performance by the Company and each Guarantor of each of the Transaction Documents to which each is a party, the issuance
and sale of the Securities, the issuance of the Guarantees and compliance by the Company and each Guarantor with the terms thereof
and the consummation of the transactions contemplated by the Transaction Documents, except for (i) the registration of the Securities
and the Guarantees under the Securities Act, (ii) the qualification of the Indenture under the Trust Indenture Act and (iii) such
consents, approvals, authorizations, orders and registrations or qualifications as may be required under applicable state securities
laws in connection with the purchase and distribution of the Securities by the Underwriters.
(r)
Legal
Proceedings.
Except as described in each of the Registration Statement, the Time of Sale Information and the Prospectus, there
are no legal, governmental or regulatory investigations, actions, demands, claims, suits, arbitrations, inquiries or proceedings
(“
Actions
”) pending to which Holdings or any of its subsidiaries is or may be a party or to which any property,
right or asset of Holdings or any of its subsidiaries is or may be the subject that, individually or in the aggregate, if determined
adversely to Holdings or such subsidiary, could reasonably be expected to have a Material Adverse Effect; no such Actions are,
to the best knowledge of Holdings or any of its subsidiaries, threatened or contemplated by any governmental or regulatory authority
or by others; and (i) there are no current or pending Actions that are required under the Securities Act to be described in the
Registration Statement or the Prospectus that are not so described in the Registration Statement, the Time of Sale Information
and the Prospectus and (ii) there are no statutes, regulations or contracts or other documents that are required under the Securities
Act to be filed as exhibits to the Registration Statement or described in the Registration Statement and the Prospectus that are
not so filed as exhibits to the Registration Statement or described in the Registration Statement, the Time of Sale Information
and the Prospectus.
(s)
Independent
Accountants.
KPMG LLP, which has certified certain combined financial statements of Holdings, is an independent registered
public accounting firm with respect to Holdings within the applicable rules and regulations adopted by the Commission and the
Public Company Accounting Oversight Board (United States) and as required by the Securities Act.
(t)
Property.
The Company and the Guarantors have good title to, or valid rights to leasehold interests in, all property material to the
respective businesses of the Company and the Guarantors, free and clear of all liens, encumbrances, claims and defects and imperfections
of title except those that (i) are outstanding pursuant to the senior credit agreement among the
Company, the
Guarantors, JPMorgan Chase Bank, N.A., as administrative agent, and the other lenders party thereto, dated March 10, 2016, (ii)
do not materially interfere with the use made and proposed to be made of such property by the Company and the Guarantors or (iii)
could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
(u)
Intellectual
Property.
(i) The Company and the Guarantors own or have the right to use all patents, patent applications, trademarks, service
marks, trade names, trademark registrations, service mark registrations, domain names and other source indicators, copyrights
and copyrightable works, know-how, trade secrets, systems, procedures, proprietary or confidential information and all other worldwide
intellectual property, industrial property and proprietary rights (collectively, “
Intellectual Property
”) used
in the conduct of their respective businesses; (ii) the Company and the Guarantors have not received any written notice of any
claim relating to Intellectual Property; and (iii) to the knowledge of the Company and any Guarantor, the Intellectual Property
of Holdings and its subsidiaries is not being infringed, misappropriated or otherwise violated by any person, except in the case
of each of (i), (ii) and (iii) above as would not reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.
(v)
Investment
Company Act.
Neither the Company nor any of the Guarantors is, and after giving effect to the offering and sale of the Securities
and the application of the proceeds thereof as described in each of the Registration Statement, the Time of Sale Information and
the Prospectus, none of them will be, an “investment company” within the meaning of the Investment Company Act of
1940, as amended, and the rules and regulations of the Commission thereunder (collectively, the “
Investment Company Act
”).
(w)
Taxes.
The Company and the Guarantors have paid all federal, state, local and foreign taxes and filed all tax returns required to
be paid or filed through the date hereof; and except as otherwise disclosed in each of the Registration Statement, the Time of
Sale Information and the Prospectus, there is no tax deficiency that has been, or could reasonably be expected to be, asserted
against the Company or any Guarantor or any of their respective properties or assets, except in each case as would not reasonably
be expected to have, individually or in the aggregate, a Material Adverse Effect.
(x)
Licenses
and Permits.
The Company and the Guarantors possess all licenses, sub-licenses, certificates, permits and other authorizations
issued by, and have made all declarations and filings with, the appropriate federal, state, local or foreign governmental or regulatory
authorities that are necessary for the ownership or lease of their respective properties or the present conduct of their respective
businesses as described in each of the Registration Statement, the Time of Sale Information and the Prospectus, except where the
failure to possess or make the same would not, individually or in the aggregate, have a Material Adverse Effect; and except as
described in each of the Registration Statement, the Time of Sale Information and the Prospectus, neither the Company nor any
Guarantor has received notice of any revocation or modification of any such license, sub-license, certificate, permit or authorization
or has any reason to believe that any such license, certificate, permit or authorization will not be renewed in the ordinary course.
(y)
No
Labor Disputes.
To the best knowledge of Holdings and its subsidiaries, none of the employees of Holdings or any of its subsidiaries
is a member of, represented by or otherwise subject to any (A) labor union or similar organization or (B) collective bargaining
agreement, in each case with respect to such employee’s employment by Holdings or any of its subsidiaries.
(z)
Compliance
with Environmental Laws.
(i) Holdings and its subsidiaries (x) are, and at all prior times were, in compliance with any and
all applicable federal, state, local and foreign laws, rules, regulations, requirements, decisions and orders relating to the
protection of human health or safety, the environment, natural resources, hazardous or toxic substances or wastes, pollutants
or contaminants (collectively, “
Environmental Laws
”), (y) have received and are in compliance with all permits,
licenses, certificates or other authorizations or approvals required of them under applicable Environmental Laws to conduct their
respective businesses, and (z) have not received notice of any actual or potential liability under or relating to any Environmental
Laws, including for the investigation or remediation of any disposal or release of hazardous or toxic substances or wastes, pollutants
or contaminants, and have no knowledge of any event or condition that would reasonably be expected to result in any such notice,
and (ii) there are no costs or liabilities associated with Environmental Laws of or relating to the Company or its subsidiaries,
except in the case of each of (i) and (ii) above, for any such failure to comply, or failure to receive required permits, licenses
or approvals, or cost or liability, as would not, individually or in the aggregate, have a Material Adverse Effect; and (iii)
except as described in each of the Time of Sale Information and the Prospectus, (x) there are no proceedings that are pending,
or that are known to the Company or any of the Guarantors to be contemplated, against Holdings or any of its subsidiaries under
any Environmental Laws in which a governmental entity is also a party, other than such proceedings regarding which it is reasonably
believed no monetary sanctions of $100,000 or more will be imposed, (y) Holdings and its subsidiaries are not aware of any issues
regarding compliance with Environmental Laws, or liabilities or other obligations under Environmental Laws or concerning hazardous
or toxic substances or wastes, pollutants or contaminants, that could reasonably be expected to have a material effect on the
capital expenditures, earnings or competitive position of Holdings and its subsidiaries, and (z) none of Holdings or its subsidiaries
anticipates material capital expenditures relating to any Environmental Laws.
(aa)
Compliance
with ERISA.
(i) Each employee benefit pension plan, within the meaning of Section 3(2) of the Employee Retirement Income Security
Act of 1974, as amended (“ERISA”) that is subject to Title IV of ERISA, for which the Company or any member of its
“Controlled Group” (defined as any entity, whether or not incorporated, that is under common control with the Company
within the meaning of Section 4001(a)(14) of ERISA or any entity that would be regarded as a single employer with the Company
under Section 414(b),(c),(m) or (o) of the Internal Revenue Code of 1986, as amended (the “Code”)) would have any
liability (each, a “Plan”) has been maintained in compliance with its terms and the requirements of any applicable
statutes, orders, rules and regulations, including but not limited to ERISA and the Code; (ii) no non-exempt prohibited transaction,
within the meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to any Plan, excluding transactions
effected pursuant to a statutory or administrative exemption; (iii) for each Plan that is subject to the funding rules of Section
412 of the Code or Section 302 of ERISA, no Plan has failed (whether or not waived), or is reasonably expected to fail, to satisfy
the minimum funding standards
(within the
meaning of Section 302 of ERISA or Section 412 of the Code) applicable to such Plan; (iv) no Plan is, or is reasonably expected
to be, in “at risk status” (within the meaning of Section 303(i) of ERISA), and no Plan that is a “multiemployer
plan” within the meaning of Section 4001(a)(3) of ERISA is in “endangered status” or “critical status”
(within the meaning of Section 305 of ERISA); (v) no “reportable event” (within the meaning of Section 4043(c) of
ERISA and the regulations promulgated thereunder), other than an event for which the 30-day notice period is waived, has occurred
or is reasonably expected to occur; (vi) each Plan that is intended to be qualified under Section 401(a) of the Code is so qualified,
and nothing has occurred, whether by action or by failure to act, which would reasonably be expected to cause the loss of such
qualification; and (vii) neither the Company nor any member of the Controlled Group has incurred, nor reasonably expects to incur,
any liability under Title IV of ERISA (other than contributions to the Plan or premiums to the Pension Benefit Guarantee Corporation,
in the ordinary course and without default) in respect of a Plan (including a “multiemployer plan” within the meaning
of Section 4001(a)(3) of ERISA), except in each case with respect to the events or conditions set forth in (i) through (vii) hereof,
as would not, individually or in the aggregate, have a Material Adverse Effect.
(bb)
Disclosure
Controls
. Holdings has established and maintains an effective system of “disclosure controls and procedures” (as
defined in Rule 13a-15(e) of the Exchange Act) that complies with the requirements of the Exchange Act and is designed to ensure
that information required to be disclosed by Holdings in reports that it files or submits under the Exchange Act is recorded,
processed, summarized and reported within the time periods specified in the Commission’s rules and forms, including controls
and procedures designed to ensure that such information is accumulated and communicated to Holdings’ management as appropriate
to allow timely decisions regarding required disclosure. Holdings has carried out evaluations of the effectiveness of its disclosure
controls and procedures as required by Rule 13a-15 of the Exchange Act.
(cc)
Accounting
Controls
. Holdings has established and maintains systems of “internal control over financial reporting” (as defined
in Rule 13a-15(f) of the Exchange Act) that comply with the requirements of the Exchange Act and have been designed by, or under
the supervision of, their respective principal executive and principal financial officers, or persons performing similar functions,
to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for
external purposes in accordance with GAAP, including, but not limited to, internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions
are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability;
(iii) access to assets is permitted only in accordance with management’s general or specific authorization; (iv) the recorded
accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect
to any differences; and (v) interactive data in eXtensible Business Reporting Language included or incorporated by reference in
the Registration Statement, the Prospectus and the Time of Sale Information is prepared in accordance with the Commission's rules
and guidelines applicable thereto. Except as disclosed in each of the Registration Statement, the Time of Sale Information and
the Prospectus, there are no material weaknesses or significant deficiencies in Holdings’ internal controls.
(dd)
Insurance.
The Company and the Guarantors have insurance covering their respective properties, operations, personnel and businesses,
which insurance is in such amounts and insures against such losses and risks as are adequate to protect the Company and the Guarantors
and their respective businesses; and neither the Company nor any Guarantor has (i) received notice from any insurer or agent of
such insurer that capital improvements or other expenditures are required or necessary to be made in order to continue such insurance
or (ii) any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires
or to obtain similar coverage at reasonable cost from similar insurers as may be necessary to continue its business.
(ee)
No
Unlawful Payments.
Neither Holdings nor any of its subsidiaries, nor, to the knowledge of the Company and each of the Guarantors,
any director, officer, employee, agent, affiliate or other person associated with or acting on behalf of Holdings or any of its
subsidiaries has (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating
to political activity; (ii) made or taken an act in furtherance of an offer, promise or authorization of any direct or indirect
unlawful payment or benefit to any foreign or domestic government official or employee , including of any government-owned or
controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of
any of the foregoing, or any political party or party official or candidate for political office; (iii) violated or is in violation
of any provision of the Foreign Corrupt Practices Act of 1977, as amended, or any applicable law or regulation implementing the
OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, or committed an offence
under the Bribery Act 2010 of the United Kingdom, or any other applicable anti-bribery or anti-corruption law; or (iv) made, offered,
agreed, requested or taken an act in furtherance of any unlawful bribe or other unlawful benefit, including, without limitation,
any rebate, payoff, influence payment, kickback or other unlawful or improper payment or benefit. Holdings and its subsidiaries
together as a whole have instituted, maintain and enforce, and will continue to maintain and enforce, policies and procedures
reasonably designed to promote and ensure compliance with all applicable anti-bribery and anti-corruption laws.
(ff)
Compliance
with Money Laundering Laws.
The operations of Holdings and its subsidiaries are and have been conducted at all times in compliance
with applicable financial recordkeeping and reporting requirements, including those of the Currency and Foreign Transactions Reporting
Act of 1970, as amended, the money laundering statutes of all applicable jurisdictions where Holdings or any of its subsidiaries
conducts business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered
or enforced by any governmental agency (collectively, the “
Money Laundering Laws
”) and no action, suit or proceeding
by or before any court or governmental agency, authority or body or any arbitrator involving Holdings or any of its subsidiaries
with respect to the Money Laundering Laws is pending or, to the knowledge of the Company or any of the Guarantors, threatened.
(gg)
No
Conflicts with Sanctions Laws
. Neither Holdings nor any of its subsidiaries, nor, to the knowledge of the Company or any of
the Guarantors, any director, officer, employee, agent, affiliate or other person associated with or acting on behalf of Holdings
or any of its subsidiaries is currently the subject or the target of any sanctions administered or enforced by the
U.S. government,
(including, without limitation, the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department
of State and including, without limitation, the designation as a “specially designated national” or “blocked
person”), the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions
authority (collectively, “
Sanctions
”), nor is Holdings or any of its subsidiaries located, organized or resident
in a country or territory that is the subject or target of Sanctions, including, without limitation, Cuba, Iran, North Korea,
Sudan, Syria and Crimea (each, a “
Sanctioned Country
”); and neither Holdings nor the Company will directly
or indirectly use the proceeds of the offering of the Securities hereunder, or lend, contribute or otherwise make available such
proceeds to any subsidiary, joint venture partner or other person or entity (i) to fund or facilitate any activities of or business
with any person that, at the time of such funding or facilitation, is the subject or target of Sanctions, (ii) to fund or facilitate
any activities of or business in any Sanctioned Country or (iii) in any other manner that will result in a violation by any person
(including any person participating in the transaction, whether as underwriter, initial purchaser, advisor, investor or otherwise)
of Sanctions.For the past five years or since Holdings’ or such subsidiaries’ formation, whichever is more recent,
Holdings and its subsidiaries have not knowingly engaged in, are not now knowingly engaged in any dealings or transactions with
any person that at the time of the dealing or transaction is or was the subject or the target of Sanctions or with any Sanctioned
Country.
(hh)
Solvency.
On and immediately after the Closing Date, the Company and each Guarantor (after giving effect to the issuance and sale of
the Securities, the issuance of the Guarantees and the other transactions related thereto as described in each of the Registration
Statement, the Time of Sale Information and the Prospectus) will be Solvent. As used in this paragraph, the term “
Solvent
”
means, with respect to a particular date and entity, that on such date (i) the fair value (and present fair saleable value) of
the assets of such entity is not less than the total amount required to pay the probable liability of such entity on its total
existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) such entity is able
to pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course
of business; (iii) assuming consummation of the issuance and sale of the Securities and the issuance of the Guarantees as contemplated
by this Agreement, the Registration Statement, the Time of Sale Information and the Prospectus, such entity does not have or intend
to incur debts or liabilities beyond its ability to pay as such debts and liabilities mature; (iv) such entity is not engaged
in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute
unreasonably small capital; and (v) such entity is not a defendant in any civil action that would result in a judgment that such
entity is or would become unable to satisfy.
(ii)
No
Broker’s Fees.
Neither the Company nor any Guarantor is a party to any contract, agreement or understanding with any
person (other than this Agreement) that would give rise to a valid claim against any of them or any Underwriter for a brokerage
commission, finder’s fee or like payment in connection with the offering and sale of the Securities.
(jj)
No
Registration Rights
. No person has the right to require the Company or any of its subsidiaries to register any securities
for sale under the Securities Act by reason of the filing of the Registration Statement with the Commission or the issuance and
sale of the Securities.
(kk)
No
Stabilization.
Neither the Company nor any of the Guarantors has taken, directly or indirectly, any action designed to or
that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Securities.
(ll)
Margin
Rules
. Neither the issuance, sale and delivery of the Securities nor the application of the proceeds thereof by the Company
as described in each of the Registration Statement, the Time of Sale Information and the Prospectus will violate Regulation T,
U or X of the Board of Governors of the Federal Reserve System or any other regulation of such Board of Governors.
(mm)
Forward-Looking
Statements.
No forward-looking statement (within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange
Act) included or incorporated by reference in any of the Registration Statement, the Time of Sale Information or the Prospectus
has been made or reaffirmed without a reasonable basis or has been disclosed other than in good faith.
(nn)
Sarbanes-Oxley
Act
. There is and has been no failure on the part of the Company or any of the Company’s directors or officers, in their
capacities as such, to comply with any provision of the Sarbanes-Oxley Act of 2002, as amended, and the rules and regulations
promulgated in connection therewith (the “
Sarbanes-Oxley Act
”), including Section 402 related to loans and
Sections 302 and 906 related to certifications.
(oo)
Status
under the Securities Act
. The Company is not an ineligible issuer and is a well-known seasoned issuer, in each case as defined
under the Securities Act, in each case at the times specified in the Securities Act in connection with the offering of the Securities.
The Company has paid the registration fee for this offering pursuant to Rule 457 under the Securities Act.
5.
Further
Agreements of the Company and the Guarantors
. The Company and the Guarantors jointly and severally covenant and agree with
each Underwriter that:
(a)
Required
Filings.
The Company and the Guarantors will file the final Prospectus with the Commission within the time periods specified
by Rule 424(b) and Rule 430A, 430B or 430C under the Securities Act, will file any Issuer Free Writing Prospectus (including the
Pricing Term Sheet referred to in Annex B hereto) to the extent required by Rule 433 under the Securities Act; and the Company
will file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for
so long as the delivery of a prospectus is required in connection with the offering or sale of the Securities; and the Company
will furnish copies of the Prospectus and each Issuer Free Writing Prospectus (to the extent not previously delivered) to the
Underwriters in New York City prior to 10:00 A.M., New York City time, on the business day next succeeding the date of this Agreement
in such quantities as the Representative may reasonably request. The Company will pay the registration fees for this offering
within the time period required by Rule 456(b)(1)(i) under the Securities Act (without giving effect to the proviso therein) and
in any event prior to the Closing Date.
(b)
Delivery
of Copies.
The Company will deliver, without charge, to the Underwriters as many copies of the Preliminary Prospectus, any
other Time of Sale Information, any Issuer Free Writing Prospectus and the Prospectus (including all amendments and supplements
thereto and documents incorporated by reference therein) as the Representative may reasonably request.
(c)
Amendments
or Supplements; Issuer Free Writing Prospectuses.
Before making, preparing, using, authorizing, approving, referring to or
filing any Issuer Free Writing Prospectus, and before filing any amendment or supplement to the Registration Statement or the
Prospectus, the Company and the Guarantors will furnish to the Representative and counsel for the Underwriters a copy of the proposed
Issuer Free Writing Prospectus, amendment or supplement for review and will not make, prepare, use, authorize, approve, refer
to or file any such Issuer Free Writing Prospectus or file any such proposed amendment or supplement to which the Representative
reasonably objects.
(d)
Notice
to the Representative.
The Company will advise the Representative promptly, and confirm such advice in writing, (i) when any
amendment to the Registration Statement has been filed or becomes effective; (ii) when any supplement to the Prospectus or any
amendment to the Prospectus or any Issuer Free Writing Prospectus has been filed; (iii) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to the Prospectus or the receipt of any comments from the
Commission relating to the Registration Statement or any other request by the Commission for any additional information; (iv)
of the issuance by the Commission or any other governmental or regulatory authority of any order suspending the effectiveness
of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus, any Time of Sale
Information or any Issuer Free Writing Prospectus or the initiation or threatening of any proceeding for that purpose or pursuant
to Section 8A of the Securities Act; (v) of the occurrence of any event within the Prospectus Delivery Period (as defined below)
as a result of which the Prospectus, any of the Time of Sale Information or any Issuer Free Writing Prospectus as then amended
or supplemented would include any untrue statement of a material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances existing when the Prospectus, the Time of Sale Information or any such
Issuer Free Writing Prospectus is delivered to a purchaser, not misleading; (vi) of the receipt by the Company of any notice of
objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule
401(g)(2) under the Securities Act; and (vii) of the receipt by the Company of any notice with respect to any suspension of the
qualification of the Securities for offer and sale in any jurisdiction or the initiation or threatening of any proceeding for
such purpose; and the Company will use its reasonable best efforts to prevent the issuance of any such order suspending the effectiveness
of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus, any of the Time of Sale Information,
any Issuer Free Writing Prospectus or the Prospectus, or suspending any such qualification of the Securities and, if any such
order is issued, will obtain as soon as possible the withdrawal thereof. As used herein, the term “
Prospectus Delivery
Period
” means such period of time after the first date of the public offering of the Securities as in the opinion of
counsel for the Underwriters a prospectus relating to the Securities is required by law to be delivered (or required to be delivered
but for Rule 172 under the Securities Act) in connection with sales of the Securities by any Underwriter or dealer.
(e)
Time
of Sale Information.
If at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result
of which any of the Time of Sale Information as then amended or supplemented would include any untrue statement of a material
fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading or (ii) it is necessary to amend or supplement the Time of Sale Information to comply with
law, the Company will immediately notify the Underwriters thereof and forthwith prepare and, subject to paragraph (c) above, file
with the Commission (to the extent required) and furnish to the Underwriters such amendments or supplements to the Time of Sale
Information (or any document to be filed with the Commission and incorporated by reference therein) as may be necessary so that
the statements in any of the Time of Sale Information as so amended or supplemented (including such documents to be incorporated
by reference therein) will not, in the light of the circumstances under which they were made, be misleading or so that any of
the Time of Sale Information will comply with law.
(f)
Ongoing
Compliance.
If during the Prospectus Delivery Period (i) any event shall occur or condition shall exist as a result of which
the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus is delivered
to a purchaser, not misleading or (ii) it is necessary to amend or supplement the Prospectus to comply with law, the Company will
immediately notify the Underwriters thereof and forthwith prepare and, subject to paragraph (c) above, file with the Commission
and furnish to the Underwriters such amendments or supplements to the Prospectus (or any document to be filed with the Commission
and incorporated by reference therein) as may be necessary so that the statements in the Prospectus as so amended or supplemented
(including such documents to be incorporated by reference therein) will not, in the light of the circumstances existing when the
Prospectus is delivered to a purchaser, be misleading or so that the Prospectus will comply with law.
(g)
Blue
Sky Compliance.
The Company will qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions
as the Representative shall reasonably request and will continue such qualifications in effect so long as required for the distribution
of the Securities;
provided
that neither the Company nor any of the Guarantors shall be required to (i) qualify as a foreign
corporation or other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be required to
so qualify, (ii) file any general consent to service of process in any such jurisdiction or (iii) subject itself to taxation in
any such jurisdiction if it is not otherwise so subject.
(h)
Earning
Statement.
The Company will make generally available to its security holders and the Representative as soon as practicable
an earning statement that satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 of the Commission promulgated
thereunder covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after
the “effective date” (as defined in Rule 158) of the Registration Statement.
(i)
Clear
Market.
During the period from the date hereof through and including the date that is 45 days after the date hereof, the Company
and each of the Guarantors will not,
without the
prior written consent of the Representative, offer, sell, contract to sell or otherwise dispose of any debt securities issued
or guaranteed by the Company or any of the Guarantors and having a tenor of more than one year (other than the Securities). For
the avoidance of doubt, this Section 5(i) will not prevent a filing of a universal shelf registration statement on Form S-3 for
the purpose of registering debt securities to be offered from time to time.
(j)
Use
of Proceeds.
The Company and Holdings will apply the net proceeds from the sale of the Securities as described in each of
the Registration Statement, the Time of Sale Information and the Prospectus under the heading “Use of proceeds”.
(k)
DTC.
The Company will assist the Underwriters in arranging for the Securities to be eligible for clearance and settlement through
DTC.
(l)
No
Stabilization.
Neither the Company nor any of the Guarantors will take, directly or indirectly, any action designed to or
that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Securities.
(m)
Record
Retention
. The Company will, pursuant to reasonable procedures developed in good faith, retain copies of each Issuer Free
Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the Securities Act.
6.
Certain
Agreements of the Underwriters
. Each Underwriter hereby represents and agrees that:
(a) It
has not and will not use, authorize use of, refer to, or participate in the planning for use of, any “
free writing prospectus
”,
as defined in Rule 405 under the Securities Act (which term includes use of any written information furnished to the Commission
by the Company and not incorporated by reference into the Registration Statement and any press release issued by the Company)
other than (i) a free writing prospectus that, solely as a result of use by such Underwriter, would not trigger an obligation
to file such free writing prospectus with the Commission pursuant to Rule 433, (ii) any Issuer Free Writing Prospectus listed
on Annex A or prepared pursuant to Section 3(c) or Section 4(c) above (including any electronic road show), or (iii) any free
writing prospectus prepared by such Underwriter and approved by the Company in advance in writing (each such free writing prospectus
referred to in clauses (i) or (iii), an “
Underwriter Free Writing Prospectus
”). Notwithstanding the foregoing,
the Underwriters may use the Pricing Term Sheet referred to in Annex B hereto without the consent of the Company.
(b) It
is not subject to any pending proceeding under Section 8A of the Securities Act with respect to the offering (and will promptly
notify the Company if any such proceeding against it is initiated during the Prospectus Delivery Period).
7.
Conditions
of Underwriters’ Obligations
. The obligation of each Underwriter to purchase Securities on the Closing Date as provided
herein is subject to the performance by the Company and each of the Guarantors of their respective covenants and other obligations
hereunder and to the following additional conditions:
(a)
Registration
Compliance; No Stop Order.
No order suspending the effectiveness of the Registration Statement shall be in effect, and no
proceeding for such purpose, pursuant to
Rule 401(g)(2)
or pursuant to Section 8A under the Securities Act shall be pending before or threatened by the Commission; the Prospectus and
each Issuer Free Writing Prospectus shall have been timely filed with the Commission under the Securities Act (in the case of
an Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act) and in accordance with Section
5(a) hereof; and all requests by the Commission for additional information shall have been complied with to the reasonable satisfaction
of the Representative.
(b)
Representations
and Warranties.
The representations and warranties of the Company and the Guarantors contained herein shall be true and correct
on the date hereof and on and as of the Closing Date; and the statements of the Company, the Guarantors and their respective officers
made in any certificates delivered pursuant to this Agreement shall be true and correct on and as of the Closing Date.
(c)
No
Downgrade.
Subsequent to the earlier of (A) the Time of Sale and (B) the execution and delivery of this Agreement, (i) no
downgrading shall have occurred in the rating accorded the Securities or any other debt securities or preferred stock issued or
guaranteed by the Company or any of the Guarantors by any “nationally recognized statistical rating organization”,
as such term is defined under Section 3(a)(62) under the Exchange Act and (ii) no such organization shall have publicly announced
that it has under surveillance or review, or has changed its outlook with respect to, its rating of the Securities or of any other
debt securities or preferred stock issued or guaranteed by the Company or any of the Guarantors (other than an announcement with
positive implications of a possible upgrading).
(d)
No
Material Adverse Change.
No event or condition of a type described in Section 4(g) hereof shall have occurred or shall exist,
which event or condition is not described in each of the Time of Sale Information (excluding any amendment or supplement thereto)
and the Prospectus (excluding any amendment or supplement thereto) the effect of which in the judgment of the Representative makes
it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner
contemplated by this Agreement, the Time of Sale Information and the Prospectus.
(e)
Officer’s
Certificate.
The Representative shall have received on and as of the Closing Date a certificate of an executive officer of
the Company and of the Guarantors who has specific knowledge of the Company and the Guarantors’ financial matters and is
satisfactory to the Representative (i) confirming that such officer has carefully reviewed the Registration Statement, the Time
of Sale Information and the Prospectus and, to the best knowledge of such officer, the representations set forth in Sections 4(b)
and 4(d) hereof are true and correct, (ii) confirming that the other representations and warranties of the Company and the Guarantors
in this Agreement are true and correct and that the Company and the Guarantors have complied with all agreements and satisfied
all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date and (iii) to the effect set
forth in paragraphs (a), (c) and (d) above.
(f)
Comfort
Letters.
On the date of this Agreement and on the Closing Date, KPMG LLP shall have furnished to the Representative, at the
request of the Company, letters, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and
substance reasonably satisfactory to the Representative, containing statements and information of the type
customarily
included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain
financial information contained or incorporated by reference in each of the Registration Statement, the Time of Sale Information
and the Prospectus;
provided
that the letter delivered on the Closing Date shall use a “cut-off” date no more
than three business days prior to the Closing Date.
(g)
Opinion
and 10b-5 Statement of Counsel for the Company and the Guarantors.
Davis Polk & Wardwell LLP, counsel for the Company
and the Guarantors, shall have furnished to the Representative, at the request of the Company and the Guarantors, their written
opinion and 10b-5 statement, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory
to the Representative, to the effect set forth in Annexes C-1 and C-2 hereto.
(h)
Opinion
of General Counsel for the Company.
John A. Moore, Senior Vice President and General Counsel of the Company, shall have furnished
to the Representative, at the request of the Company and the Guarantors, his written opinion, dated the Closing Date and addressed
to the Underwriters, in form and substance reasonably satisfactory to the Representative, to the effect set forth in Annex D hereto.
(i)
Opinion
and 10b-5 Statement of Counsel for the Underwriters.
The Representative shall have received on and as of the Closing Date
an opinion and 10b-5 statement, addressed to the Underwriters, of Cravath, Swaine & Moore LLP counsel for the Underwriters,
with respect to such matters as the Representative may reasonably request, and such counsel shall have received such documents
and information as they may reasonably request to enable them to pass upon such matters.
(j)
Certificate
of Chief Financial Officer for the Company.
Mindy K. West, Executive Vice President and Chief Financial Officer of the Company,
shall have furnished to the Representative, a letter dated the date hereof and the Closing Date, as the case may be, in form and
substance reasonably satisfactory to the Representative, to the effect set forth in Annex E hereto.
(k)
No
Legal Impediment to Issuance.
No action shall have been taken and no statute, rule, regulation or order shall have been enacted,
adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date, prevent
the issuance or sale of the Securities or the issuance of the Guarantees; and no injunction or order of any federal, state or
foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or the
issuance of the Guarantees.
(l)
Good
Standing
. The Representative shall have received on and as of the Closing Date satisfactory evidence of the good standing
of the Company and each of the Guarantors in their respective jurisdictions of organization and their good standing in such other
jurisdictions as the Representative and the Company shall agree, in each case in writing or any standard form of telecommunication
from the appropriate governmental authorities of such jurisdictions.
(m)
DTC.
The Securities shall be eligible for clearance and settlement through DTC.
(n)
Indenture
and Securities
. The Indenture shall have been duly executed and delivered by a duly authorized officer of the Company, each
of the Guarantors and the Trustee, and the Securities shall have been duly executed and delivered by a duly authorized officer
of the Company and duly authenticated by the Trustee.
(o)
Additional
Documents.
On or prior to the Closing Date, the Company and each of the Guarantors shall have furnished to the Representative
such further certificates and documents as the Representative may reasonably request.
8.
Indemnification
and Contribution
.
(a)
Indemnification
of the Underwriters.
The Company and each of the Guarantors jointly and severally agree to indemnify and hold harmless each
Underwriter, its affiliates, directors and officers and each person, if any, who controls such Underwriter within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages and
liabilities (including, without limitation, reasonable legal fees and other expenses incurred in connection with any suit, action
or proceeding or any claim asserted, as such fees and expenses are incurred), joint or several, that arise out of, or are based
upon, (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or caused
by any omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make
the statements therein, not misleading, or (ii) any untrue statement or alleged untrue statement of a material fact contained
in the Prospectus (or any amendment or supplement thereto), any Issuer Free Writing Prospectus or any Time of Sale Information,
or caused by any omission or alleged omission to state therein a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading, in each case except insofar as such losses, claims,
damages or liabilities arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission
made in reliance upon and in conformity with any information relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Representative expressly for use therein.
(b)
Indemnification
of the Company and the Guarantors.
Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the
Company, each of the Guarantors, each of their respective directors and officers who signed the Registration Statement and each
person, if any, who controls the Company or any of the Guarantors within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act to the same extent as the indemnity set forth in paragraph (a) above, but only with respect to any losses,
claims, damages or liabilities that arise out of, or are based upon, any untrue statement or omission or alleged untrue statement
or omission made in reliance upon and in conformity with any information relating to such Underwriter furnished to the Company
in writing by such Underwriter through the Representative expressly for use in the Registration Statement, the Prospectus (or
any amendment or supplement thereto), any Issuer Free Writing Prospectus or any Time of Sale Information, it being understood
and agreed that the only such information consists of the following paragraphs in the Preliminary Prospectus and the Prospectus:
the seventh and eighth paragraphs under the caption “Underwriting”.
(c)
Notice
and Procedures.
If any suit, action, proceeding (including any governmental or regulatory investigation), claim or demand
shall be brought or asserted against any person in respect of which indemnification may be sought pursuant to either paragraph
(a) or (b) above, such person (the “
Indemnified Person
”) shall promptly notify the person against whom such
indemnification may be sought (the “
Indemnifying Person
”) in writing;
provided
that the failure to notify
the Indemnifying Person shall not relieve it from any liability that it may have under paragraph (a) or (b) above except to the
extent that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and
provided
,
further
, that the failure to notify the Indemnifying Person shall not relieve it from any liability that
it may have to an Indemnified Person otherwise than under paragraph (a) or (b) above. If any such proceeding shall be brought
or asserted against an Indemnified Person and it shall have notified the Indemnifying Person thereof, the Indemnifying Person
shall retain counsel reasonably satisfactory to the Indemnified Person (who shall not, without the consent of the Indemnified
Person, be counsel to the Indemnifying Person) to represent the Indemnified Person and any others entitled to indemnification
pursuant to this Section 7 that the Indemnifying Person may designate in such proceeding and shall pay the fees and expenses of
such proceeding and shall pay the reasonable fees and expenses of such counsel related to such proceeding, as incurred. In any
such proceeding, any Indemnified Person shall have the right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such Indemnified Person unless (i) the Indemnifying Person and the Indemnified Person shall have mutually
agreed to the contrary; (ii) the Indemnifying Person has failed within a reasonable time to retain counsel reasonably satisfactory
to the Indemnified Person; (iii) the Indemnified Person shall have reasonably concluded that there may be legal defenses
available to it that are different from or in addition to those available to the Indemnifying Person; or (iv) the named parties
in any such proceeding (including any impleaded parties) include both the Indemnifying Person and the Indemnified Person and representation
of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is
understood and agreed that the Indemnifying Person shall not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all Indemnified
Persons, and that all such fees and expenses shall be reimbursed as they are incurred. Any such separate firm for any Underwriter,
its affiliates, directors and officers and any control persons of such Underwriter shall be designated in writing by the Representative
and any such separate firm for the Company, the Guarantors, their respective directors and officers who signed the Registration
Statement and any control persons of the Company and the Guarantors shall be designated in writing by the Company. The Indemnifying
Person shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the Indemnifying Person agrees to indemnify each Indemnified Person
from and against any loss or liability by reason of such settlement or judgment. No Indemnifying Person shall, without the written
consent of the Indemnified Person, effect any settlement of any pending or threatened proceeding in respect of which any Indemnified
Person is or could have been a party and indemnification could have been sought hereunder by such Indemnified Person, unless such
settlement (x) includes an unconditional release of such Indemnified Person, in form and substance reasonably satisfactory to
such Indemnified Person, from all liability on claims that are the subject matter of such proceeding and (y) does not
include any
statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnified Person.
(d)
Contribution.
If the indemnification provided for in paragraph (a) or (b) above is unavailable to an Indemnified Person or insufficient
in respect of any losses, claims, damages or liabilities referred to therein, then each Indemnifying Person under such paragraph,
in lieu of indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by such Indemnified
Person as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Guarantors on the one hand and the Underwriters on the other from the offering of the
Securities or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) but also the relative fault of the Company and the Guarantors
on the one hand and the Underwriters on the other in connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the
Company and the Guarantors on the one hand and the Underwriters on the other shall be deemed to be in the same respective proportions
as the net proceeds (before deducting expenses) received by the Company from the sale of the Securities and the total underwriting
discounts and commissions received by the Underwriters in connection therewith, as provided in this Agreement, bear to the aggregate
offering price of the Securities. The relative fault of the Company and the Guarantors on the one hand and the Underwriters on
the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or any Guarantor
or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
(e)
Limitation
on Liability.
The Company, the Guarantors and the Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 7 were determined by
pro rata
allocation (even if the Underwriters were treated as one entity
for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to
in paragraph (d) above. The amount paid or payable by an Indemnified Person as a result of the losses, claims, damages and liabilities
referred to in paragraph (d) above shall be deemed to include, subject to the limitations set forth above, any legal or other
expenses incurred by such Indemnified Person in connection with any such action or claim. Notwithstanding the provisions of this
Section 7, in no event shall an Underwriter be required to contribute any amount in excess of the amount by which the total underwriting
discounts and commissions received by such Underwriter with respect to the offering of the Securities exceeds the amount of any
damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’
obligations to contribute pursuant to this Section 7 are several in proportion to their respective purchase obligations hereunder
and not joint.
(f)
Non-Exclusive
Remedies.
The remedies provided for in this Section 7 are not exclusive and shall not limit any rights or remedies that may
otherwise be available to any Indemnified Person at law or in equity.
9.
Termination
.
This Agreement may be terminated in the absolute discretion of the Representative, by notice to the Company, if after the execution
and delivery of this Agreement and on or prior to the Closing Date (i) trading generally shall have been suspended or materially
limited on the New York Stock Exchange or the over-the-counter market; (ii) trading of any securities issued or guaranteed by
the Company or any of the Guarantors shall have been suspended on any exchange or in any over-the-counter market; (iii) a general
moratorium on commercial banking activities shall have been declared by federal or New York State authorities; or (iv) there shall
have occurred any outbreak or escalation of hostilities or any change in financial markets or any calamity or crisis, either within
or outside the United States, that, in the judgment of the Representative, is material and adverse and makes it impracticable
or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by
this Agreement, the Time of Sale Information and the Prospectus.
10.
Defaulting
Underwriter
.
(a) If,
on the Closing Date, any Underwriter defaults on its obligation to purchase the Securities that it has agreed to purchase hereunder,
the non-defaulting Underwriters may in their discretion arrange for the purchase of such Securities by other persons satisfactory
to the Company on the terms contained in this Agreement. If, within 36 hours after any such default by any Underwriter, the non-defaulting
Underwriters do not arrange for the purchase of such Securities, then the Company shall be entitled to a further period of 36
hours within which to procure other persons satisfactory to the non-defaulting Underwriters to purchase such Securities on such
terms. If other persons become obligated or agree to purchase the Securities of a defaulting Underwriter, either the non-defaulting
Underwriters or the Company may postpone the Closing Date for up to five full business days in order to effect any changes that
in the opinion of counsel for the Company or counsel for the Underwriters may be necessary in the Registration Statement, the
Time of Sale Information or the Prospectus or in any other document or arrangement, and the Company agrees to promptly prepare
any amendment or supplement to the Registration Statement, the Time of Sale Information or the Prospectus that effects any such
changes. As used in this Agreement, the term “Underwriter” includes, for all purposes of this Agreement unless the
context otherwise requires, any person not listed in Schedule 1 hereto that, pursuant to this Section 10, purchases Securities
that a defaulting Underwriter agreed but failed to purchase.
(b) If,
after giving effect to any arrangements for the purchase of the Securities of a defaulting Underwriter or Underwriters by the
non-defaulting Underwriters and the Company as provided in paragraph (a) above, the aggregate principal amount of such Securities
that remains unpurchased does not exceed one-eleventh of the aggregate principal amount of all the Securities, then the Company
shall have the right to require each non-defaulting Underwriter to purchase the principal amount of Securities that such Underwriter
agreed to purchase hereunder plus such Underwriter’s
pro rata
share (based on the principal amount of Securities
that such Underwriter agreed to purchase hereunder) of the Securities of such defaulting Underwriter or Underwriters for which
such arrangements have not been made.
(c) If,
after giving effect to any arrangements for the purchase of the Securities of a defaulting Underwriter or Underwriters by the
non-defaulting Underwriters and the Company as provided in paragraph (a) above, the aggregate principal amount of such Securities
that remains unpurchased exceeds one-eleventh of the aggregate principal amount of all the Securities, or if the Company shall
not exercise the right described in paragraph (b) above, then this Agreement shall terminate without liability on the part of
the non-defaulting Underwriters. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the
part of the Company or the Guarantors, except that the Company and each of the Guarantors will continue to be liable for the payment
of expenses as set forth in Section 11 hereof and except that the provisions of Section 7 hereof shall not terminate and
shall remain in effect.
(d) Nothing
contained herein shall relieve a defaulting Underwriter of any liability it may have to the Company, the Guarantors or any non-defaulting
Underwriter for damages caused by its default.
11.
Payment
of Expenses
.
(a) Whether
or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Company and each of
the Guarantors jointly and severally agree to pay or cause to be paid all costs and expenses incident to the performance of their
respective obligations hereunder, including without limitation, (i) the costs incident to the authorization, issuance, sale,
preparation and delivery of the Securities and any taxes payable in that connection; (ii) the costs incident to the preparation,
printing and filing under the Securities Act of the Registration Statement, the Preliminary Prospectus, any Issuer Free Writing
Prospectus, any Time of Sale Information and the Prospectus (including any amendment or supplement thereto) and the distribution
thereof; (iii) the costs of reproducing and distributing each of the Transaction Documents; (iv) the fees and expenses of
the Company’s and the Guarantors’ counsel and independent accountants; (v) the fees and expenses incurred in connection
with the registration or qualification and determination of eligibility for investment of the Securities under the laws of such
jurisdictions as the Representative may designate (including the related reasonable fees and expenses of counsel for the Underwriters); (vi)
any fees charged by rating agencies for rating the Securities; (vii) the fees and expenses of the Trustee and any paying
agent (including related fees and expenses of any counsel to such parties); (viii) all expenses and application fees incurred
in connection with any filing with, and clearance of the offering by, the Financial Industry Regulatory Authority, and the approval
of the Securities for book-entry transfer by DTC; and (ix) all expenses incurred by the Company in connection with any “road
show” presentation to potential investors.
(b) If
(i) this Agreement is terminated pursuant to Section 9, (ii) the Company for any reason fails to tender the Securities for delivery
to the Underwriters or (iii) the Underwriters decline to purchase the Securities for any reason permitted under this Agreement,
the Company and each of the Guarantors jointly and severally agree to reimburse the Underwriters for all out-of-pocket costs and
expenses (including the fees and expenses of their counsel) reasonably incurred by the Underwriters in connection with this Agreement
and the offering contemplated hereby.
12.
Persons
Entitled to Benefit of Agreement
. This Agreement shall inure to the benefit of and be binding upon the parties hereto and
their respective successors and the officers and directors and any controlling persons referred to herein, and the affiliates
of each Underwriter referred to in Section 7 hereof. Nothing in this Agreement is intended or shall be construed to give any other
person any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision contained herein.
No purchaser of Securities from any Underwriter shall be deemed to be a successor merely by reason of such purchase.
13.
Survival
.
The respective indemnities, rights of contribution, representations, warranties and agreements of the Company, the Guarantors
and the Underwriters contained in this Agreement or made by or on behalf of the Company, the Guarantors or the Underwriters pursuant
to this Agreement or any certificate delivered pursuant hereto shall survive the delivery of and payment for the Securities and
shall remain in full force and effect, regardless of any termination of this Agreement or any investigation made by or on behalf
of the Company, the Guarantors or the Underwriters.
14.
Certain
Defined Terms
. For purposes of this Agreement, (a) except where otherwise expressly provided, the term “
affiliate
”
has the meaning set forth in Rule 405 under the Securities Act; (b) the term “
business day
” means any day other
than a day on which banks are permitted or required to be closed in New York City; (c) the term “
subsidiary
”
has the meaning set forth in Rule 405 under the Securities Act; and (d) the term “
significant subsidiary
” has
the meaning set forth in Rule 1-02 of Regulation S-X under the Exchange Act.
15.
Compliance
with USA Patriot Act
. In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into
law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective
clients, including the Company, which information may include the name and address of their respective clients, as well as other
information that will allow the Underwriters to properly identify their respective clients.
16.
Miscellaneous
.
(a)
Authority
of the Representative.
Any action by the Underwriters hereunder may be taken by the Representative on behalf of the Underwriters,
and any such action taken by the Representative shall be binding upon the Underwriters.
(b)
Notices.
All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or
transmitted and confirmed by any standard form of telecommunication. Notices to the Underwriters shall be given to the Representative
c/o J.P. Morgan Securities LLC, 383 Madison Avenue, New York, New York 10179 (fax: 212-270-1063); Attention: Geoffrey Benson (tel.:
212-270-3661). Notices to the Company and the Guarantors shall be given to them at Murphy Oil USA, Inc., 200 Peach Street, P.O.
Box 7000, El Dorado, Arkansas 71730-5836 (fax: 870-864-6489); Attention: General Counsel.
(c)
Governing
Law.
This Agreement and any claim, controversy or dispute arising under or related to this Agreement shall be governed by
and construed in accordance with the laws of the State of New York.
(d)
Submission
to Jurisdiction
. The Company and each of the Guarantors hereby submit to the exclusive jurisdiction of the U.S. federal and
New York state courts in the Borough of Manhattan in The City of New York in any suit or proceeding arising out of or relating
to this Agreement or the transactions contemplated hereby. The Company and each of the Guarantors waive any objection which it
may now or hereafter have to the laying of venue of any such suit or proceeding in such courts. Each of the Company and each of
the Guarantors agree that final judgment in any such suit, action or proceeding brought in such court shall be conclusive and
binding upon the Company and each Guarantor, as applicable, and may be enforced in any court to the jurisdiction of which Company
and each Guarantor, as applicable, is subject by a suit upon such judgment.
(e)
Waiver
of Jury Trial.
Each of the parties hereto hereby waives any right to trial by jury in any suit or proceeding arising out of
or relating to this Agreement.
(f)
Counterparts.
This Agreement may be signed in counterparts (which may include counterparts delivered by any standard form of telecommunication),
each of which shall be an original and all of which together shall constitute one and the same instrument.
(g)
Amendments
or Waivers.
No amendment or waiver of any provision of this Agreement, nor any consent or approval to any departure therefrom,
shall in any event be effective unless the same shall be in writing and signed by the parties hereto.
(h)
Headings.
The headings herein are included for convenience of reference only and are not intended to be part of, or to affect the meaning
or interpretation of, this Agreement.
If the foregoing
is in accordance with your understanding, please indicate your acceptance of this Agreement by signing in the space provided below.
Very truly yours,
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Murphy Oil USA, Inc.
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By:
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/s/
John A. Moore
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Name:
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John
A. Moore
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Title:
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Senior
Vice President
and General Counsel
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Murphy USA Inc.
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By:
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/s/
John A. Moore
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Name:
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John
A. Moore
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Title:
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Senior
Vice President
and General
Counsel
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591
Beverage, Inc.
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864 Holdings, Inc.
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864 Beverage, Inc.
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Murphy Oil Trading
Company (Eastern)
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Spur Oil Corporation
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Superior Crude Trading
Company
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EL DORADO PROPERTIES
LLC
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By:
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/s/
John A. Moore
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Name:
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John
A. Moore
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Title:
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Senior
Vice President
and General Counsel
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[
Signature
Page to the Underwriting Agreement
]
Accepted: As of the date first
written above
J.P. MORGAN SECURITIES LLC
For itself and on behalf of the
several Underwriters listed
in Schedule 1 hereto.
By
/s/ Geoffrey Benson
Authorized
Signatory
[
Signature
Page to the Underwriting Agreement
]
Schedule 1
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Underwriter
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Principal Amount
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J.P. Morgan Securities LLC
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$105,000,000
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Stephens Inc.
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$75,000,000
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Regions Securities LLC
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$30,000,000
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RBC Capital Markets, LLC
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$22,500,000
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Fifth Third Securities, Inc.
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$15,000,000
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U.S. Bancorp Investments, Inc.
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$15,000,000
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Wells Fargo Securities, LLC
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$15,000,000
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Merrill Lynch, Pierce, Fenner & Smith Incorporated
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$7,500,000
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BB&T Capital Markets, a division of BB&T Securities LLC
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$3,750,000
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PNC Capital Markets LLC
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$3,750,000
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UMB Financial Services, Inc.
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$3,750,000
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Hancock Investment Services, Inc.
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$3,750,000
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Total
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$300,000,000
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Schedule
2
Guarantors
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Guarantor
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State of Incorporation
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Murphy USA Inc.
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Delaware
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591 Beverage, Inc.
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Nebraska
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864 Holdings, Inc.
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Delaware
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864 Beverage, Inc.
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Texas
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Murphy Oil Trading Company (Eastern)
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Delaware
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Spur Oil Corporation
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Delaware
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Superior Crude Trading Company
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Delaware
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El Dorado Properties LLC
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Arkansas
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Schedule 3
Subsidiaries
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Subsidiary
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State of Incorporation
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591 Beverage, Inc.
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Nebraska
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864 Holdings, Inc.
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Delaware
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864 Beverage, Inc.
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Texas
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Murphy Oil Trading Company (Eastern)
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Delaware
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Spur Oil Corporation
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Delaware
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Superior Crude Trading Company
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Delaware
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Hankinson Holding, LLC
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Delaware
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El Dorado Properties LLC
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Arkansas
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ANNEX A
Time of Sale Information
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1.
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Pricing Term Sheet containing
the terms of the Securities, substantially in the form of Annex B.
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ANNEX B
[Form of
Pricing Term Sheet]
Filed Pursuant
to Rule 433
Registration
Statement No. 333-213416
April 20,
2017
Murphy
Oil USA, Inc.
Pricing
Term Sheet
$300,000,000
5.625% Senior Notes due 2027
This pricing term sheet dated
April 20, 2017 to the preliminary prospectus supplement (the “Preliminary Prospectus Supplement”) dated April 20,
2017 of Murphy Oil USA, Inc. is qualified in its entirety by reference to the Preliminary Prospectus Supplement. The information
in this pricing term sheet supplements the Preliminary Prospectus Supplement and updates and supersedes the information in the
Preliminary Prospectus Supplement to the extent it is inconsistent with the information in the Preliminary Prospectus Supplement.
Capitalized terms used in this pricing term sheet and not defined herein have the meanings assigned in the Preliminary Prospectus
Supplement.
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Issuer:
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Murphy Oil USA, Inc.
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Guarantors:
|
Murphy USA Inc. (parent) and certain subsidiaries of Murphy
USA Inc.
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Security Description:
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Senior Unsecured Notes
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Distribution:
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SEC Registered
|
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Size:
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$300,000,000
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Gross Proceeds:
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$300,000,000
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Use of Proceeds:
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The Issuer expects the net proceeds to be approximately $295
million, after deducting underwriting discounts and other estimated expenses of the offering that are payable by the Issuer.
The Issuer intends to use the first $250 million of net proceeds for general corporate purposes, and any net proceeds in excess
thereof to pay down amounts outstanding under the Issuer’s Senior Credit Agreement. At December 31, 2016, after giving
effect to the offering of the notes and the use of proceeds therefrom, the Issuer and the guarantors would have had approximately
$937 million of total indebtedness outstanding, of which $136 million was secured indebtedness under the Issuer’s Senior
Credit Agreement.
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Maturity Date:
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May 1, 2027
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Coupon:
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5.625%
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Issue Price:
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100.000% of face amount, plus accrued interest from April
25, 2017
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Yield to Maturity:
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5.625%
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Spread to Benchmark Treasury:
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+338 basis points
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Benchmark Treasury:
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UST 2.25% due February 15, 2027
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Interest Payment Dates:
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May 1 and November 1, commencing November 1, 2017
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Record Dates:
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April 15 and October 15
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Equity Clawback:
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Up to 35% prior to May 1, 2020 at 105.625%, if
at least 65% of the aggregate principal amount of the notes remains outstanding immediately after such redemption and the
redemption occurs within 90 days of the date of such equity offering
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Optional Redemption:
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Make-whole call @ Treasury Rate +50 basis points
prior to May 1, 2022, then:
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On or after:
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Price:
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May 1, 2022
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102.813%
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May 1, 2023
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101.875%
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May 1, 2024
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100.938%
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May 1, 2025 and thereafter
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100.000%
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Change of Control:
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Putable at 101% of principal plus accrued and
unpaid interest, if any, to the date of purchase
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Pricing Date:
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April 20, 2017
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Settlement Date:
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April 25, 2017 (T+3)
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CUSIP / ISIN:
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626738 AD0 / US626738AD06
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Denominations:
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$2,000 and integral multiples of $1,000 in excess
thereof
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Ratings*:
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Ba2 / BB+
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Lead-Left Bookrunner:
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J.P. Morgan Securities LLC
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Joint Book-Running Manager:
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Stephens Inc.
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Senior Co-Managers:
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Regions Securities LLC
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RBC Capital Markets, LLC
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Fifth Third Securities, Inc.
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U.S. Bancorp Investments, Inc.
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Wells Fargo Securities, LLC
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Co-Managers:
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Merrill Lynch, Pierce, Fenner & Smith Incorporated
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BB&T Capital Markets, a division of BB&T Securities LLC
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PNC Capital Markets LLC
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UMB Financial Services, Inc.
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Hancock Investment Services, Inc.
|
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Changes to the Preliminary Prospectus Supplement:
|
The following revision
is made to the Description of the Notes in the Preliminary Prospectus Supplement:
The deletion of “2023
Notes” in Section (a)(3)(A) under “Description of the notes—Certain covenants—Limitation on restricted
payments”.
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__________________
*Note: A securities rating is
not a recommendation to buy, sell or hold securities and may be subject to revision or withdrawal at any time.
* * *
The Issuer has filed a registration
statement (including a prospectus) with the U.S. Securities and Exchange Commission (the “SEC”) for the offering to
which this communication relates. Before you invest, you should read the Issuer’s prospectus in that registration statement,
the Preliminary Prospectus Supplement and any other documents the Issuer has filed with the SEC for more complete information
about the Issuer and this offering. You may get these documents for free by visiting EDGAR on the SEC web site at http://www.sec.gov.
Alternatively, the Issuer, any underwriter or any dealer participating in the offering will arrange to send you the prospectus
if you request it by calling J.P. Morgan Securities LLC collect at (212) 834-4533.
Exhibits 4.1 and 4.2
MURPHY
OIL USA, INC.
AND
EACH OF THE GUARANTORS PARTY HERETO
5.625%
Senior Notes Due 2027
INDENTURE
Dated
as of April 25, 2017
U.S.
BANK NATIONAL ASSOCIATION
as Trustee, Registrar and Paying Agent
CROSS-REFERENCE
TABLE
TIA
Section
|
|
Indenture
Section
|
|
310
|
(a)(1)
|
|
7.10
|
|
|
(a)(2)
|
|
7.10
|
|
|
(a)(3)
|
|
N.A.
|
|
|
(a)(4)
|
|
N.A.
|
|
|
(a)(5)
|
|
7.10
|
|
|
(b)
|
|
7.08; 7.10
|
|
|
(c)
|
|
N.A.
|
|
311
|
(a)
|
|
7.11
|
|
|
(b)
|
|
7.11
|
|
|
(c)
|
|
N.A.
|
|
312
|
(a)
|
|
2.05
|
|
|
(b)
|
|
11.03
|
|
|
(c)
|
|
11.03
|
|
313
|
(a)
|
|
7.06
|
|
|
(b)(1)
|
|
7.06
|
|
|
(b)(2)
|
|
7.06
|
|
|
(c)
|
|
11.02
|
|
|
(d)
|
|
7.06
|
|
314
|
(a)
|
|
4.02; 4.12
|
|
|
(b)
|
|
N.A.
|
|
|
(c)(1)
|
|
11.04
|
|
|
(c)(2)
|
|
11.04
|
|
|
(c)(3)
|
|
N.A.
|
|
|
(d)
|
|
N.A.
|
|
|
(e)
|
|
11.05
|
|
|
(f)
|
|
N.A.
|
|
315
|
(a)
|
|
7.01
|
|
|
(b)
|
|
7.05
|
|
|
(c)
|
|
7.01
|
|
|
(d)
|
|
7.01
|
|
|
(e)
|
|
6.11
|
|
316
|
(a) (last
|
|
11.06
|
|
sentence)
|
|
|
|
|
(a)(1)(A)
|
|
6.05
|
|
|
(a)(1)(B)
|
|
6.04
|
|
|
(a)(2)
|
|
N.A.
|
|
|
(b)
|
|
6.07
|
|
|
(c)
|
|
9.04
|
|
317
|
(a)(1)
|
|
6.08
|
|
|
(a)(2)
|
|
6.09
|
|
|
(b)
|
|
2.04
|
|
318
|
(a)
|
|
11.01
|
|
|
(b)
|
|
N.A.
|
|
|
(c)
|
|
11.01
|
|
|
|
|
|
|
|
|
N.A. means Not Applicable.
|
|
|
|
|
|
|
|
Note:
|
This Cross-Reference
Table shall not, for any purpose, be deemed to be part of this Indenture.
|
|
TABLE OF
CONTENTS
Page
|
Article 1
Definitions and Incorporation by Reference
|
|
SECTION
1.01. Definitions
|
1
|
|
SECTION
1.02. Other Definitions
|
34
|
|
SECTION
1.03. Incorporation by Reference of Trust Indenture Act
|
35
|
|
SECTION
1.04. Rules of Construction
|
35
|
|
Article 2
The Securities
|
|
SECTION
2.01. Form and Dating
|
36
|
|
SECTION
2.02. Execution and Authentication
|
36
|
|
SECTION
2.03. Registrar and Paying Agent
|
37
|
|
SECTION
2.04. Paying Agent To Hold Money in Trust
|
37
|
|
SECTION
2.05. Securityholder Lists
|
38
|
|
SECTION
2.06. Transfer and Exchange
|
38
|
|
SECTION
2.07. Replacement Securities
|
38
|
|
SECTION
2.08. Outstanding Securities
|
38
|
|
SECTION
2.09. Temporary Securities
|
39
|
|
SECTION
2.10. Cancellation
|
39
|
|
SECTION
2.11. Defaulted Interest
|
39
|
|
SECTION
2.12. CUSIP Numbers, ISINs, etc.
|
39
|
|
SECTION
2.13. Issuance of Additional Securities
|
39
|
|
Article 3
Redemption
|
|
SECTION
3.01. Notices to Trustee
|
40
|
|
SECTION
3.02. Selection of Securities to Be Redeemed
|
40
|
|
SECTION
3.03. Notice of Redemption
|
40
|
|
SECTION
3.04. Effect of Notice of Redemption
|
41
|
|
SECTION
3.05. Deposit of Redemption Price
|
41
|
|
SECTION
3.06. Securities Redeemed in Part
|
42
|
|
Article 4
Covenants
|
|
SECTION
4.01. Payment of Securities
|
42
|
|
SECTION
4.02. SEC Reports
|
42
|
|
SECTION
4.03. Limitation on Indebtedness
|
43
|
|
SECTION
4.04. Limitation on Restricted Payments
|
47
|
|
SECTION
4.05. Limitation on Restrictions on Distributions from Restricted Subsidiaries
|
52
|
|
SECTION
4.06. Limitation on Sales of Assets and Subsidiary Stock
|
54
|
|
SECTION
4.07. Limitation on Affiliate Transactions
|
57
|
|
SECTION
4.08. Change of Control
|
58
|
|
SECTION
4.09. Limitation on Liens
|
60
|
|
SECTION
4.10. Future Subsidiary Guarantors
|
61
|
|
SECTION
4.11. Suspension of Covenants
|
61
|
|
SECTION
4.12. Compliance Certificate
|
62
|
|
Article 5
Successor Company
|
|
SECTION
5.01. When Company May Merge or Transfer Assets
|
62
|
|
Article 6
Defaults and Remedies
|
|
SECTION
6.01. Events of Default
|
65
|
|
SECTION
6.02. Acceleration
|
67
|
|
SECTION
6.03. Other Remedies
|
67
|
|
SECTION
6.04. Waiver of Past Defaults
|
68
|
|
SECTION
6.05. Control by Majority
|
68
|
|
SECTION
6.06. Limitation on Suits
|
68
|
|
SECTION
6.07. Rights of Holders to Receive Payment
|
69
|
|
SECTION
6.08. Collection Suit by Trustee
|
69
|
|
SECTION
6.09. Trustee May File Proofs of Claim
|
69
|
|
SECTION
6.10. Priorities
|
69
|
|
SECTION
6.11. Undertaking for Costs
|
70
|
|
SECTION
6.12. Waiver of Stay or Extension Laws
|
70
|
|
Article 7
Trustee
|
|
SECTION
7.01. Duties of Trustee
|
70
|
|
SECTION
7.02. Rights of Trustee
|
71
|
|
SECTION
7.03. Individual Rights of Trustee
|
72
|
|
SECTION
7.04. Trustee’s Disclaimer
|
72
|
|
SECTION
7.05. Notice of Defaults
|
72
|
|
SECTION
7.06. Reports by Trustee to Holders
|
72
|
|
SECTION
7.07. Compensation and Indemnity
|
72
|
|
SECTION
7.08. Replacement of Trustee
|
73
|
|
SECTION
7.09. Successor Trustee by Merger
|
74
|
|
SECTION
7.10. Eligibility; Disqualification
|
74
|
|
SECTION
7.11. Preferential Collection of Claims Against Company
|
74
|
|
Article 8
Discharge of Indenture; Defeasance
|
|
SECTION
8.01. Discharge of Liability on Securities; Defeasance
|
75
|
|
SECTION
8.02. Conditions to Defeasance
|
76
|
|
SECTION
8.03. Application of Trust Money
|
77
|
|
SECTION
8.04. Repayment to Company
|
77
|
|
SECTION
8.05. Indemnity for Government Obligations
|
77
|
|
SECTION
8.06. Reinstatement
|
77
|
|
Article 9
Amendments
|
|
SECTION
9.01. Without Consent of Holders
|
78
|
|
SECTION
9.02. With Consent of Holders
|
79
|
|
SECTION
9.03. Compliance with Trust Indenture Act
|
80
|
|
SECTION
9.04. Revocation and Effect of Consents and Waivers
|
80
|
|
SECTION
9.05. Notation on or Exchange of Securities
|
80
|
|
SECTION
9.06. Trustee To Sign Amendments
|
80
|
|
SECTION
9.07. Payment for Consent
|
81
|
|
Article 10
Guarantees
|
|
SECTION
10.01. Guarantees
|
81
|
|
SECTION
10.02. Limitation on Liability
|
82
|
|
SECTION
10.03. Successors and Assigns
|
83
|
|
SECTION
10.04. No Waiver
|
83
|
|
SECTION
10.05. Modification
|
83
|
|
SECTION
10.06. Release of Subsidiary Guarantor
|
83
|
|
SECTION
10.07. Contribution
|
84
|
|
Article 11
Miscellaneous
|
|
SECTION
11.01. Trust Indenture Act Controls
|
84
|
|
SECTION
11.02. Notices
|
84
|
|
SECTION
11.03. Communication by Holders with Other Holders
|
85
|
|
SECTION
11.04. Certificate and Opinion as to Conditions Precedent
|
85
|
|
SECTION
11.05. Statements Required in Certificate or Opinion
|
85
|
|
SECTION
11.06. When Securities Disregarded
|
86
|
|
SECTION
11.07. Rules by Trustee, Paying Agent and Registrar
|
86
|
|
SECTION
11.08. Legal Holidays
|
86
|
|
SECTION
11.09. Governing Law
|
86
|
|
SECTION
11.10. No Recourse Against Others
|
86
|
|
SECTION
11.11. Successors
|
86
|
|
SECTION
11.12. Multiple Originals
|
87
|
|
SECTION
11.13. Table of Contents; Headings
|
87
|
Appendix
A – Provisions Relating to the Securities
Exhibit
A – Form of Initial Security
INDENTURE
dated as of April 25, 2017, among MURPHY OIL USA, INC., a Delaware corporation (the “
Company
”), MURPHY USA
INC., a Delaware corporation (“
Holdings
”), each SUBSIDIARY GUARANTOR from time to time a party hereto and U.S.
BANK NATIONAL ASSOCIATION, a national banking association, as trustee (the “
Trustee
”).
Each party
agrees as follows for the benefit of the other parties and for the equal and ratable benefit of the Holders of the Initial Securities
and the Additional Securities (collectively, the “
Securities
”):
Article
1
Definitions and Incorporation by Reference
SECTION 1.01.
Definitions.
“
Additional
Assets
” means:
|
|
(1)
|
any property, plant or equipment
used in a Related Business;
|
|
|
(2)
|
the Capital Stock of a Person that
becomes a Restricted Subsidiary as a result of the acquisition of such Capital Stock
by Holdings, the Company or another Restricted Subsidiary; or
|
|
|
(3)
|
Capital Stock constituting a minority
interest in any Person that at such time is a Restricted Subsidiary;
|
provided
,
however
,
that any such Restricted Subsidiary described in clause (2) or (3) above is primarily engaged in a Related Business.
“
Additional
Securities
” means Securities issued under this Indenture after the Issue Date and in compliance with Section 2.13 and
4.03, it being understood that any Securities issued in exchange for or replacement of any Initial Security issued on the Issue
Date shall not be an Additional Security.
“
Adjusted
Treasury Rate
” means, with respect to any redemption date, (i) the yield, under the heading which represents the
average for the immediately preceding week, appearing in the most recently published statistical release designated “H.15(519)”
or any successor publication which is published weekly by the Board of Governors of the Federal Reserve System and which establishes
yields on actively traded United States Treasury securities adjusted to constant maturity under the caption “Treasury Constant
Maturities”, for the maturity corresponding to the Comparable Treasury Issue (if no maturity is within three (3) months
before or after May 1, 2022, yields for the two published maturities most closely corresponding to the Comparable Treasury Issue
shall be determined and the Adjusted Treasury Rate shall be interpolated
or
extrapolated from such yields on a straight line basis, rounding to the nearest month) or (ii) if such release (or any successor
release) is not published during the week preceding the calculation date or does not contain such yields, the rate per year equal
to the semi-annual equivalent yield to maturity of the Comparable Treasury Issue (expressed as a percentage of its principal amount)
equal to the Comparable Treasury Price for such redemption date, in each case calculated on the third Business Day immediately
preceding the redemption date, plus 0.50%.
“
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 the purposes of this definition, “control” when used with respect to
any Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings
correlative to the foregoing. For purposes of Section 4.04, 4.06 and 4.07 only, “Affiliate” shall also mean any beneficial
owner of Capital Stock representing 10% or more of the total voting power of the Voting Stock (on a fully diluted basis) of Holdings
or of rights or warrants to purchase such Capital Stock (whether or not currently exercisable) and any Person who would be an
Affiliate of any such beneficial owner pursuant to the first sentence hereof.
“
Applicable
Premium
” means with respect to a Security at any redemption date the excess of (if any) (A) the present value at
such redemption date of (1) the redemption price of such Security on May 1, 2022 (such redemption price being described in
the second paragraph of Section 5 of the Securities, exclusive of any accrued interest) plus (2) all required remaining scheduled
interest payments due on such Security through May 1, 2022 (but excluding accrued and unpaid interest to the redemption date),
computed using a discount rate equal to the Adjusted Treasury Rate, over (B) the principal amount of such Security on such
redemption date.
“
Asset
Disposition
” means any sale, lease, transfer or other disposition (or series of related sales, leases, transfers or
dispositions) by Holdings, the Company or any Restricted Subsidiary, including any disposition by means of a merger, consolidation
or similar transaction (each referred to for the purposes of this definition as a “
disposition
”), of:
(1)
any shares of Capital Stock of the Company or a Restricted Subsidiary (other than directors’ qualifying shares or
shares required by applicable law to be held by a Person other than Holdings, the Company or a Restricted Subsidiary);
(2)
all or substantially all the assets of any division or line of business of Holdings, the Company or any Restricted Subsidiary;
or
(3)
any other assets of Holdings, the Company or any Restricted Subsidiary outside of the ordinary course of business of Holdings,
the Company or such Restricted Subsidiary
other than, in the case of clauses
(1), (2) and (3) above, (A) a disposition by (x) a Restricted Subsidiary or the Company to Holdings, (y) a Restricted
Subsidiary or Holdings to the Company or (z) a Restricted Subsidiary, the Company or Holdings to a Restricted Subsidiary,
(B) for purposes of Section 4.06 only, (i) a disposition that constitutes a Restricted Payment (or would constitute
a Restricted Payment but for the exclusions from the definition thereof) and that is not prohibited by Section 4.04 and (ii)
a disposition of all or substantially all the assets of Holdings in accordance with Section 5.01, (C) a disposition of assets
with a Fair Market Value of less than $10,000,000;
provided
,
however
, that for purposes of this clause (C), Fair
Market Value may be determined by any Officer authorized by Holdings to do so, (D) a disposition of cash or Temporary Cash Investments,
(E) the granting, creation or perfection of a Lien not prohibited by Section 4.09 (but not the sale or other disposition of the
property subject to such Lien), (F) the disposition of products, services, inventory, equipment, real property and accounts receivable
or other assets in the ordinary course of business, including in connection with the compromise, settlement or collection thereof,
(G) sales in the ordinary course of business of immaterial assets, (H) the disposition of damaged, obsolete, worn out, uneconomical
or surplus property, equipment or assets, (I) licenses and sublicenses by Holdings, the Company or any Restricted Subsidiary of
software or intellectual property in the ordinary course of business, (J) any surrender or waiver of contract rights or the settlement,
release, recovery one or surrender of contract, tort or other claims of any kind, (K) transfers of property subject to casualty
or condemnation proceedings, (L) the voluntary termination of Hedging Obligations, (M) the trade or exchange by Holdings, the
Company or any Restricted Subsidiary of any asset for any other asset or assets;
provided
that the Fair Market Value of
the asset or assets received by Holdings, the Company or such Restricted Subsidiary in such trade or exchange (including any cash
or Temporary Cash Investments) is reasonably equivalent to the Fair Market Value of the asset or assets disposed of by Holdings,
the Company or such Restricted Subsidiary pursuant to such trade or exchange;
provided further
, that if any cash or Temporary
Cash Investments are used in such trade or exchange to achieve an exchange of equivalent value, that the amount of such cash and/or
Temporary Cash Investments shall be deemed proceeds of an “Asset Disposition”, (N) any disposition in connection with
a Sale/Leaseback Transaction permitted under Section 4.03 and 4.09 or (O) any disposition of the Ethanol Assets or any disposition
of shares of Capital Stock of the Ethanol Subsidiary;
provided
that the Ethanol Subsidiary owns no assets other than the
Ethanol Assets.
“
Attributable
Debt
” in respect of a Sale/Leaseback Transaction means, as at the time of determination, the present value (discounted
at a rate implicit in such transaction, compounded annually) of the total obligations of the lessee for rental payments (other
than amounts required to be paid on account of property taxes, maintenance, repairs, insurance, assessments, utilities, operating
and labor costs and other items that do not constitute payments for property rights) during the remaining term of the lease included
in such Sale/Leaseback Transaction (including any period for which such lease has been extended);
provided
,
however
,
that if such Sale/Leaseback Transaction results in a Capital Lease Obligation, the amount of Indebtedness represented thereby
will be determined in accordance with the definition of “Capital Lease Obligation”.
“
Average
Life
” means, as of the date of determination, with respect to any Indebtedness, the quotient obtained by
dividing
(1) the sum of the products of the numbers of years from the date of determination to the dates of each successive scheduled
principal payment of or redemption or similar payment with respect to such Indebtedness multiplied by the amount of such payment
by
(2) the sum of all such payments.
“
Board
of Directors
” means the board of directors of Holdings or any committee thereof duly authorized to act on behalf of
such board.
“
Business
Day
” means each day which is not a Legal Holiday.
“
Capital
Lease Obligation
” means an obligation that is required to be classified and accounted for as a capital lease for financial
reporting purposes in accordance with GAAP, and the amount of Indebtedness represented by such obligation shall be the capitalized
amount of such obligation determined in accordance with GAAP; and the Stated Maturity thereof shall be the date of the last payment
of rent or any other amount due under such lease prior to the first date upon which such lease may be terminated by the lessee
without payment of a penalty. For purposes of Section 4.09, a Capital Lease Obligation shall be deemed to be secured by a Lien
on the property being leased.
“
Capital
Stock
” of any Person means any and all shares, interests (including partnership interests), rights to purchase, warrants,
options, participations or other equivalents of or interests in (however designated) equity of such Person, including any Preferred
Stock, but excluding any debt securities convertible into such equity.
“
Change
of Control
” means the occurrence of any of the following events:
(1)
any “person” (as such term is used in Sections 13(d)(3) of the Exchange Act) is or becomes the “beneficial
owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the
total voting power of the Voting Stock of Holdings;
provided
that the consummation of any such transaction resulting in
such person owning more than 50% of the total voting power of the Voting Stock of Holdings shall not be considered a Change of
Control if (a) Holdings becomes a direct or indirect wholly-owned subsidiary of a holding company and (b) immediately
following such transaction, (x) the direct or indirect holders of the Voting Stock of the holding company are substantially
the same as the holders of Holdings’ Voting Stock immediately prior to such transaction or (y) no person is the beneficial
owner, directly or indirectly, of more than 50% of the Voting Stock of such holding company;
(2)
the adoption by the Board of Directors of a plan relating to the liquidation or dissolution of Holdings;
(3)
the merger or consolidation of Holdings with or into another Person or the merger of another Person with or into Holdings,
or the sale of all or
substantially all the assets of Holdings (determined on a consolidated basis) to another Person other than
a transaction following which (A) in the case of a merger or consolidation transaction, holders of securities that represented
100% of the Voting Stock of Holdings immediately prior to such transaction (or other securities into which such securities are
converted as part of such merger or consolidation transaction) own directly or indirectly at least a majority of the voting power
of the Voting Stock of the surviving Person or any direct or indirect parent company of the surviving Person in such merger or
consolidation transaction immediately after such transaction and (B) in the case of the sale of all or substantially all
the assets of Holdings, each transferee becomes an obligor or a Guarantor in respect of the Securities; or
(4)
the Company ceases to be a Subsidiary of Holdings.
“
Code
”
means the Internal Revenue Code of 1986, as amended.
“
Company
”
means the party named as such in this Indenture until a successor replaces it and, thereafter, means the successor and, for purposes
of any provision contained herein and required by the TIA, each other obligor on the indenture securities.
“
Comparable
Treasury Issue
” means the United States Treasury security selected by the Quotation Agent as having a maturity comparable
to the remaining term of the Securities from the redemption date to May 1, 2022, that would be utilized, at the time of selection
and in accordance with customary financial practice, in pricing new issues of corporate debt securities of a maturity most nearly
equal to May 1, 2022.
“
Comparable
Treasury Price
” means, with respect to any redemption date, if clause (ii) of the Adjusted Treasury Rate is applicable,
the average of three, or such lesser number as is obtained by the Trustee, Reference Treasury Dealer Quotations for such redemption
date.
“
Consolidated
Coverage Ratio
” as of any date of determination means the ratio of
(1)
the aggregate amount of EBITDA for the period of the most recent four (4) full consecutive fiscal quarters for which internal
consolidated financial statements of Holdings are available to
(2)
Consolidated Interest Expense for such four (4) fiscal quarters;
provided
,
however
,
that:
(A) if
Holdings, the Company or any Restricted Subsidiary has Incurred any Indebtedness since the beginning of such period that remains
outstanding or if the transaction giving rise to the need to calculate the Consolidated Coverage Ratio is an Incurrence of Indebtedness,
or both, EBITDA
and Consolidated Interest Expense for such period shall be calculated after giving effect on a
pro forma
basis to such Indebtedness as if such Indebtedness had been Incurred on the first day of such period;
(B) if
Holdings, the Company or any Restricted Subsidiary has repaid, repurchased, defeased or otherwise discharged any Indebtedness
since the beginning of such period or if any Indebtedness is to be repaid, repurchased, defeased or otherwise discharged (in each
case other than Indebtedness Incurred under any revolving credit facility unless such Indebtedness has been permanently repaid
and has not been replaced) on the date of the transaction giving rise to the need to calculate the Consolidated Coverage Ratio,
EBITDA and Consolidated Interest Expense for such period shall be calculated on a
pro forma
basis as if such discharge
had occurred on the first day of such period;
(C) if
since the beginning of such period Holdings, the Company or any Restricted Subsidiary shall have made any Asset Disposition, EBITDA
for such period shall be reduced by an amount equal to EBITDA (if positive) directly attributable to the assets which are the
subject of such Asset Disposition for such period, or increased by an amount equal to EBITDA (if negative), directly attributable
thereto for such period and Consolidated Interest Expense for such period shall be reduced by an amount equal to the Consolidated
Interest Expense directly attributable to any Indebtedness of Holdings, the Company or any Restricted Subsidiary repaid, repurchased,
defeased or otherwise discharged with respect to Holdings, the Company and the continuing Restricted Subsidiaries in connection
with such Asset Disposition for such period (or, if the Capital Stock of any Restricted Subsidiary is sold, the Consolidated Interest
Expense for such period directly attributable to the Indebtedness of such Restricted Subsidiary to the extent Holdings, the Company
and the continuing Restricted Subsidiaries are no longer liable for such Indebtedness after such sale);
(D) if
since the beginning of such period Holdings, the Company or any Restricted Subsidiary (by merger or otherwise) shall have made
an Investment in the Company or any Restricted Subsidiary (or any Person which becomes a Restricted Subsidiary) or an acquisition
of assets, including any acquisition of assets occurring in connection with a transaction requiring a calculation to be made hereunder,
which constitutes all or substantially all of an operating unit of a business, EBITDA and Consolidated Interest Expense for such
period shall be calculated after giving
pro forma
effect thereto (including the Incurrence of any Indebtedness) as if such
Investment or acquisition had occurred on the first day of such period; and
(E) if
since the beginning of such period any Person (that subsequently became a Restricted Subsidiary or was merged with or into Holdings,
the Company or any Restricted Subsidiary since the beginning of such period) shall have made any Asset Disposition, any Investment
or acquisition of assets that
would have required an adjustment pursuant to clause (C) or (D) above if made by Holdings,
the Company or a Restricted Subsidiary during such period, EBITDA and Consolidated Interest Expense for such period shall be calculated
after giving
pro forma
effect thereto as if such Asset Disposition, Investment or acquisition had occurred on the first
day of such period.
For purposes of this definition,
(i) whenever
pro forma
effect is to be given to an acquisition of assets, the amount of income or earnings relating
thereto and the amount of Consolidated Interest Expense associated with any Indebtedness Incurred in connection therewith, the
pro forma
calculations shall be determined in good faith by a responsible financial or accounting Officer of Holdings and
(ii) whenever
pro forma
effect is to be given to a transaction, the
pro forma
calculations may include cost
savings and all other operating expense reductions resulting from such transaction that have been realized or are, in the good
faith judgment of a responsible financial or accounting Officer of Holdings, expected to be realized within twelve (12) months
of such transaction. If any Indebtedness bears a floating rate of interest and is being given
pro forma
effect, the interest
on such Indebtedness shall be calculated as if the rate in effect on the date of determination had been the applicable rate for
the entire period (taking into account any Interest Rate Agreement applicable to such Indebtedness if such Interest Rate Agreement
has a remaining term in excess of twelve (12) months). If any Indebtedness is incurred under a revolving credit facility
and is being given
pro forma
effect, the interest on such Indebtedness shall be calculated based on the average daily balance
of such Indebtedness for the four (4) fiscal quarters subject to the
pro forma
calculation.
“
Consolidated
Current Liabilities
” of such Person as of the date of determination means the aggregate amount of liabilities of such
Person and its consolidated Restricted Subsidiaries which may properly be classified as current liabilities under GAAP (including
taxes accrued as estimated), on a consolidated basis, after eliminating:
(1)
all intercompany items between any of such Person and any Restricted Subsidiary of such Person; and
(2)
all current maturities of long-term Indebtedness, all as determined in accordance with GAAP consistently applied.
“
Consolidated
Interest Expense
” means, for any period, the total interest expense of Holdings, the Company and the consolidated Restricted
Subsidiaries (other than non-cash interest expense attributable to convertible indebtedness under Accounting Practices Bulletin
14-1 or any successor provision),
plus
, to the extent not included in such total interest expense, and to the extent incurred
by Holdings, the Company or the Restricted Subsidiaries, without duplication,
(1)
interest expense attributable to Capital Lease Obligations, the interest portion of rent expense associated with Attributable
Debt in respect of the relevant lease giving rise thereto, determined as if such lease were a capitalized
lease in accordance
with GAAP, and the interest component of any deferred payment obligations;
(2)
amortization of debt discount (including the amortization of original issue discount resulting from the issuance of Indebtedness
at less than par) and debt issuance cost;
provided
,
however
, that any amortization of bond premium shall be credited
to reduce Consolidated Interest Expense unless, pursuant to GAAP, such amortization of bond premium has otherwise reduced Consolidated
Interest Expense;
(3)
capitalized interest;
(4)
non-cash interest expense;
provided
,
however
, that any non-cash interest expense or income attributable to
the movement in the mark-to-market valuation of Hedging Obligations or other derivative instruments pursuant to GAAP shall be
excluded from the calculation of Consolidated Interest Expense;
(5)
commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptance
financing;
(6)
net payments pursuant to Hedging Obligations;
(7)
all dividends accrued in respect of all Disqualified Stock of Holdings and all Preferred Stock of the Company or any Restricted
Subsidiary, in each case, held by Persons other than Holdings, the Company or a Restricted Subsidiary (other than such dividends
payable solely in Capital Stock (other than Disqualified Stock) of Holdings);
(8)
interest accruing on any Indebtedness of any other Person to the extent such Indebtedness is Guaranteed by (or secured
by a Lien on the assets of) Holdings, the Company or any Restricted Subsidiary; and
(9)
the cash contributions to any employee stock ownership plan or similar trust to the extent such contributions are used
by such plan or trust to pay interest or fees to any Person (other than Holdings, the Company or a Restricted Subsidiary) in connection
with Indebtedness Incurred by such plan or trust.
“
Consolidated
Leverage Ratio
” as of any date of determination means the ratio of (1) the aggregate amount of Indebtedness of
Holdings, the Company and the Restricted Subsidiaries as of such date of determination to (2) EBITDA for the most recent four
(4) full consecutive fiscal quarters for which internal consolidated financial statements of Holdings are available, in each
case with such
pro forma
adjustments to Indebtedness and EBITDA as are consistent with the
pro forma
adjustment
provisions set forth in the definition of Consolidated Coverage Ratio.
“
Consolidated
Net Income
” means, for any period, the net income of Holdings and its consolidated Subsidiaries;
provided
,
however
,
that there shall not be included in such Consolidated Net Income:
(1)
any net income of any Person (other than Holdings) if such Person is not the Company or a Restricted Subsidiary, except
that
(A)
subject to the exclusion contained in clause (4) below, Holdings’ equity in the net income of any such Person
for such period shall be included in such Consolidated Net Income up to the aggregate amount of cash actually paid by such Person
during such period to Holdings, the Company or a Restricted Subsidiary as a dividend or other distribution (subject, in the case
of a dividend or other distribution paid to a Restricted Subsidiary, to the limitations contained in clause (3) below); and
(B)
Holdings’ or the Company’s equity in a net loss of any such Person for such period shall be included in determining
such Consolidated Net Income up to the aggregate amount of cash actually funded by Holdings or the Company, as the case may be,
during such period to such Person;
(2)
any net income (or loss) of any Person acquired by Holdings or a Subsidiary of Holdings in a pooling of interests transaction
(or any transaction accounted for in a manner similar to a pooling of interests) for any period prior to the date of such acquisition,
to the extent such net income is not paid in cash as a dividend or other distribution to Holdings, the Company or a Restricted
Subsidiary (subject, in the case of a dividend or other distribution paid to a Restricted Subsidiary, to the limitations in clause (3)
below);
(3)
any net income of any Restricted Subsidiary if such Restricted Subsidiary is subject to restrictions, directly or indirectly,
on the payment of dividends or the making of distributions by such Restricted Subsidiary, directly or indirectly, to Holdings
or the Company, except that
(A)
subject to the exclusion contained in clause (4) below, Holdings’ equity in the net income of any such Restricted
Subsidiary for such period shall be included in such Consolidated Net Income up to the aggregate amount of cash actually paid
by such Restricted Subsidiary during such period to Holdings, the Company or another Restricted Subsidiary as a dividend or other
distribution (subject, in the case of a dividend or other distribution paid to another Restricted Subsidiary, to the limitation
contained in this clause); and
(B)
Holdings’ equity in a net loss of any such Restricted Subsidiary for such period shall be included in determining
such Consolidated Net Income;
(4)
any gain (or loss) realized upon the sale or other disposition of any assets of Holdings, its consolidated Subsidiaries
or any other Person (including pursuant to any sale-and-leaseback arrangement) which are not sold or otherwise
disposed of in
the ordinary course of business and any gain (or loss) realized upon the sale or other disposition of any Capital Stock of any
Person;
(5)
extraordinary gains or losses;
(6)
income and losses attributable to discontinued operations;
(7)
any non-cash compensation expense realized for grants of performance shares, stock options or other rights to officers,
directors and employees of Holdings, the Company or any Restricted Subsidiary shall be excluded;
provided
that such shares,
options or other rights can be redeemed at the option of the holder only for Qualified Capital Stock of Holdings, the Company
or any Restricted Subsidiary;
(8)
the cumulative effect of a change in accounting principles;
(9)
any net after-tax gain (or loss) attributable to the early retirement or conversion of Indebtedness;
(10)
unrealized gains and losses with respect to Hedging Obligations, including without limitation, those resulting from the
application of FASB ASC Topic 815; and
(11)
non-cash interest expenses attributable to the equity component of convertible debt, including under FASB ASC Topic 470,
in each case, for such period.
Notwithstanding the foregoing, for the purposes of Section 4.04 only, there shall be excluded from Consolidated Net Income any
repurchases, repayments or redemptions of Investments, proceeds realized on the sale of Investments or return of capital to Holdings,
the Company or a Restricted Subsidiary to the extent such repurchases, repayments, redemptions, proceeds or returns increase the
amount of Restricted Payments permitted under such Section pursuant to Section 4.04(a)(3)(D) or (E).
“
Consolidated
Net Tangible Assets
” of a Person as of any date of determination, means the total amount of assets (less accumulated
depreciation and amortization, allowances for doubtful receivables, other applicable reserves and other properly deductible items)
which would appear on a consolidated balance sheet of such Person and its consolidated Restricted Subsidiaries, determined on
a consolidated basis in accordance with GAAP, and after giving effect to purchase accounting and after deducting therefrom Consolidated
Current Liabilities and, to the extent otherwise included, the amounts of unamortized debt discount and expenses and other unamortized
deferred charges, goodwill, patents, trademarks, service marks, trade names, copyrights, licenses, organization or developmental
expenses and other intangible items.
“
Consolidated
Secured Indebtedness
” means, as of any date of determination, an amount equal to the Consolidated Total Indebtedness
as of such date that is then secured by Liens on property or assets of Holdings, the Company or any
Restricted
Subsidiary plus, the aggregate additional Indebtedness that Holdings, the Company or any Restricted Subsidiary may Incur as of
such date pursuant to Section 4.03(b)(1) for which a financial institution has committed, or is otherwise obligated, to provide.
“
Consolidated
Secured Leverage Ratio
” means, as of any date of determination, the ratio of (a) Consolidated Secured Indebtedness
to (b) the aggregate amount of EBITDA for the most recently ended four full consecutive fiscal quarters for which internal
consolidated financial statements of Holdings are available, in each case with such
pro forma
adjustments to Consolidated
Secured Indebtedness and EBITDA as are consistent with the
pro forma
adjustment provisions set forth in the definition
of Consolidated Coverage Ratio;
provided
,
however
, that for purposes of the calculation of the Consolidated Secured
Leverage Ratio, in connection with the Incurrence of any Lien pursuant to clause (26) of the definition of “Permitted
Liens”, Holdings, the Company or the Restricted Subsidiaries may elect, pursuant to an Officer’s Certificate delivered
to the Trustee, to treat all or any portion of the commitment under any Indebtedness which is to be secured by such Lien as being
Incurred at such time and any subsequent Incurrence of Indebtedness under such commitment shall not be deemed, for purposes of
this calculation, to be an Incurrence at such subsequent time.
“
Consolidated
Total Indebtedness
” means, as of any date of determination, an amount equal to the aggregate amount of all outstanding
Indebtedness of Holdings, the Company and the Restricted Subsidiaries on a consolidated basis.
“
Credit
Facilities
” means one or more debt facilities (including the Senior Credit Agreement), commercial paper facilities,
securities purchase agreement, indenture or similar agreement, in each case, with banks or other institutional lenders or investors
providing for revolving loans, term loans, receivables financing (including through the sale of receivables to lenders or to special
purpose entities formed to borrow from lenders against such receivables), letters of credit or the issuance of securities, including
any related notes, guarantees, collateral documents, instruments and agreement executed in connection therewith, and, in each
case, as amended, restated, replaced (whether upon or after termination or otherwise), refinanced, supplemented, modified or otherwise
changed (in whole or in part, and without limitation as to amount, terms, conditions, covenants and other provisions) from time
to time.
“
Currency
Agreement
” means any foreign exchange contract, currency swap agreement or other similar agreement with respect to currency
values.
“
Default
”
means any event which is, or after notice or passage of time or both would be, an Event of Default.
“
Designated
Non-cash Consideration
” means the Fair Market Value of non-cash consideration received by Holdings, the Company or one
of the Restricted Subsidiaries in connection with an Asset Disposition that is so designated as Designated Non-cash Consideration
pursuant to an Officer’s Certificate setting forth the basis of such
valuation,
less the amount of Temporary Cash Investments received in connection with a subsequent sale of such Designated Non-cash Consideration.
“
Disqualified
Stock
” means, with respect to any Person, any Capital Stock which by its terms (or by the terms of any security into
which it is convertible or for which it is exchangeable at the option of the holder thereof) or upon the happening of any event:
(1)
matures or is mandatorily redeemable (other than redeemable only for Capital Stock of such Person which is not itself Disqualified
Stock) pursuant to a sinking fund obligation or otherwise;
(2)
is convertible or exchangeable at the option of the holder thereof for Indebtedness or Disqualified Stock; or
(3)
is mandatorily redeemable or must be purchased upon the occurrence of certain events or otherwise, in whole or in part,
in each case on or prior to the
first anniversary after the Stated Maturity of the Securities;
provided
,
however
, that any Capital Stock that would
not constitute Disqualified Stock but for provisions thereof giving holders thereof the right to require such Person to purchase
or redeem such Capital Stock upon the occurrence of an “asset sale” or “change of control” occurring prior
to the first anniversary after the Stated Maturity of the Securities shall not constitute Disqualified Stock if (A) the “asset
sale” or “change of control” provisions applicable to such Capital Stock are not more favorable to the holders
of such Capital Stock than the terms applicable to the Securities under Sections 4.06 and 4.08 of this Indenture and (B)
any such requirement only becomes operative after compliance with such terms applicable to the Securities, including the purchase
of any Securities tendered pursuant thereto.
“
EBITDA
”
for any period means the sum of Consolidated Net Income,
plus
the following to the extent deducted in calculating such
Consolidated Net Income:
(1)
all provisions for taxes based on the income or profits of Holdings, the Company and the consolidated Restricted Subsidiaries;
plus
(2)
Consolidated Interest Expense;
plus
(3)
depreciation and amortization expense of Holdings, the Company and the consolidated Restricted Subsidiaries (including
amortization of intangibles but excluding amortization expense attributable to a prepaid item that was paid in cash in a prior
period);
plus
(4)
any losses attributable to early extinguishment of Indebtedness or under any Hedging Obligation, and any unrealized losses
attributable to the application of “mark to market” accounting in respect of Hedging Obligations;
plus
(5)
an amount equal to any extraordinary loss plus any net loss realized by Holdings, the Company and the consolidated Restricted
Subsidiaries in connection with (A) an Asset Disposition or (B) any disposition of the Ethanol Assets or any disposition
of the shares of Capital Stock of the Ethanol Subsidiary;
plus
(6)
all impairments and other non-cash charges or expenses of Holdings, the Company and the consolidated Restricted Subsidiaries
(excluding any such impairment and other non-cash charges and expenses to the extent representing an accrual of or reserve for
cash expenditures in any future period);
less
(7)
all non-cash items of income of Holdings, the Company and the consolidated Restricted Subsidiaries (other than accruals
of revenue by Holdings, the Company and the consolidated Restricted Subsidiaries in the ordinary course of business);
less
(8)
any gains attributable to early extinguishment of Indebtedness or under any Hedging Obligation, and any unrealized gains
attributable to the application of “mark to market” accounting in respect of Hedging Obligations;
less
(9)
an amount equal to any extraordinary gain plus any net gain realized by Holdings, the Company and the consolidated Restricted
Subsidiaries in connection with (A) an Asset Disposition or (B) any disposition of the Ethanol Assets or any disposition
of the shares of Capital Stock of the Ethanol Subsidiary,
in each case for such period.
Notwithstanding the foregoing, the provision for taxes based on the income or profits of, and the depreciation and amortization
and non-cash charges of, a Restricted Subsidiary shall be added to Consolidated Net Income to compute EBITDA only to the extent
(and in the same proportion, including by reason of minority interests) that the net income or loss of such Restricted Subsidiary
was included in calculating Consolidated Net Income and only if a corresponding amount would be permitted at the date of determination
to be dividended or otherwise contributed or distributed to Holdings by such Restricted Subsidiary without prior approval (that
has not been obtained), pursuant to the terms of its charter and all agreements, instruments, judgments, decrees, orders, statutes,
rules and governmental regulations applicable to such Restricted Subsidiary or its stockholders.
“
Ethanol
Assets
” means any and all real and personal, tangible and intangible assets and properties, including cash, securities,
accounts and contract rights primarily related to the operations of the Ethanol Subsidiary.
“
Ethanol
Subsidiary
” means Hankinson Holding, LLC.
“
Exchange
Act
” means the U.S. Securities Exchange Act of 1934, as amended.
“
Fair
Market Value
” means, with respect to any asset or property, the price which could be negotiated in an arm’s-length,
free market transaction, for cash, between a willing seller and a willing and able buyer, neither of whom is under undue pressure
or compulsion to complete the transaction. Fair Market Value shall be determined in good faith by the Board of Directors, whose
determination shall be conclusive and evidenced by a resolution of such Board of Directors;
provided
,
however
, that
for purposes of Section 4.04(a)(3)(B), if the Fair Market Value of the property or assets in question is so determined to be in
excess of $50,000,000, such determination must be confirmed by an Independent Qualified Party.
“
Foreign
Subsidiary
” means any Restricted Subsidiary of Holdings that is not organized under the laws of the United States of
America or any State thereof or the District of Columbia.
“
GAAP
”
means generally accepted accounting principles in the United States of America as in effect as of the Issue Date, including those
set forth in:
(1)
the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants;
(2)
statements and pronouncements of the Financial Accounting Standards Board;
(3)
such other statements by such other entity as approved by a significant segment of the accounting profession; and
(4)
the rules and regulations of the SEC governing the inclusion of financial statements (including
pro forma
financial
statements) in periodic reports required to be filed pursuant to Section 13 of the Exchange Act, including opinions
and pronouncements in staff accounting bulletins and similar written statements from the accounting staff of the SEC,
except with
respect to any reports or financial information required to be delivered pursuant to the covenant set forth under Section 4.02
of this Indenture, which shall be prepared in accordance with GAAP as in effect on the date thereof. All ratios and computations
based on GAAP contained in this Indenture shall be computed in conformity with GAAP.
“
Guarantee
”
means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness of any Person
and any obligation, direct or indirect, contingent or otherwise, of such Person
(1)
to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness of such Person (whether
arising by virtue of partnership arrangements, or by agreements to keep-well, to purchase assets, goods, securities or services,
to take-or-pay or to maintain financial statement conditions or otherwise); or
(2)
entered into for the purpose of assuring in any other manner the obligee of such Indebtedness of the payment thereof or
to protect such obligee against loss in respect thereof (in whole or in part);
provided
,
however
, that the term “Guarantee” shall not include endorsements for collection or deposit in the ordinary
course of business. The term “Guarantee” used as a verb has a corresponding meaning.
“
Guarantor
”
means Holdings and any Subsidiary Guarantor.
“
Hedging
Obligations
” of any Person means the obligations of such Person pursuant to any Interest Rate Agreement, Currency Agreement
or similar agreements or arrangements relating to commodity prices.
“
Holder
”
or “
Securityholder
” means the Person in whose name a Security is registered on the Registrar’s books.
“
Incur
”
means issue, assume, Guarantee, incur or otherwise become liable for;
provided
,
however
, that any Indebtedness of
a Person existing at the time such Person becomes a Restricted Subsidiary (whether by merger, consolidation, acquisition or otherwise)
shall be deemed to be Incurred by such Person at the time it becomes a Restricted Subsidiary. The term “Incurrence”
when used as a noun shall have a correlative meaning. Solely for purposes of determining compliance with Section 4.03:
(1)
amortization of debt discount or the accretion of principal with respect to a non-interest bearing or other discount security;
(2)
the payment of regularly scheduled interest in the form of additional Indebtedness of the same instrument or the payment
of regularly scheduled dividends on Capital Stock in the form of additional Capital Stock of the same class and with the same
terms;
(3)
the obligation to pay a premium in respect of Indebtedness arising in connection with the issuance of a notice of redemption
or the making of a mandatory offer to purchase such Indebtedness;
(4)
changes in the principal amount of any Indebtedness that is denominated in a currency other than U.S. dollars solely as
a result of fluctuations in exchange rates or currency values; and
(5)
the reclassification of any outstanding Capital Stock as Indebtedness due to a change in accounting principles so long
as such Capital Stock was issued prior to, and not in contemplation of, such accounting change
shall not be deemed to be the
Incurrence of Indebtedness.
“
Indebtedness
”
means, with respect to any Person on any date of determination (without duplication):
(1)
the principal in respect of (A) indebtedness of such Person for money borrowed and (B) indebtedness evidenced
by notes, debentures, bonds or other similar instruments for the payment of which such Person is responsible or liable, including,
in each case, any premium on such indebtedness to the extent such premium has become due and payable;
(2)
all Capital Lease Obligations of such Person and all Attributable Debt in respect of Sale/Leaseback Transactions entered
into by such Person;
(3)
all obligations of such Person issued or assumed as the deferred purchase price of property and all conditional sale obligations
of such Person, in either case due more than six months after such property is acquired or such sale is completed, and all obligations
of such Person under any title retention agreement relating to property acquired by such Person (but excluding (A) accounts
payable or other liabilities to trade creditors arising in the ordinary course of business, (B) deferred compensation payable
to directors, officers or employees of Holdings, the Company or any other Restricted Subsidiary and (C) any purchase price
adjustment or earnout incurred in connection with an acquisition, except to the extent that the amount payable pursuant to such
purchase price adjustment or earnout is, or becomes, reasonably determinable);
(4)
all obligations of such Person for the reimbursement of any obligor on any letter of credit, bankers’ acceptance
or similar credit transaction (other than obligations with respect to letters of credit securing obligations (other than obligations
described in clauses (1) through (3) above) entered into in the ordinary course of business of such Person to the extent
such letters of credit are not drawn upon or, if and to the extent drawn upon, such drawing is reimbursed no later than the tenth
Business Day following payment on the letter of credit);
(5)
the amount of all obligations of such Person with respect to the redemption, repayment or other repurchase of any Disqualified
Stock of such Person or, with respect to any Preferred Stock of any Subsidiary of such Person (but excluding, in each case, any
accrued dividends);
(6)
all Guarantees by such Person of (A) obligations of the type referred to in clauses (1) through (5) or (B) dividends
of other Persons;
(7)
all obligations of the type referred to in clauses (1) through (6) of other Persons secured by any Lien on any property
or asset of such Person (whether or not such obligation is assumed by such Person), the amount of such obligation being deemed
to be the lesser of the Fair Market Value of such property or assets and the amount of the obligation so secured; and
(8)
to the extent not otherwise included in this definition, Hedging Obligations of such Person.
Notwithstanding the foregoing,
in connection with the purchase by Holdings, the Company or any Restricted Subsidiary of any business, the term “Indebtedness”
shall
exclude post-closing payment adjustments to which the seller may become entitled to the extent such payment is determined
by a final closing balance sheet or such payment depends on the performance of such business after the closing;
provided
,
however
, that, at the time of closing, the amount of any such payment is not determinable and, to the extent such payment
thereafter becomes fixed and determined, the amount is paid within thirty (30) days thereafter.
The amount
of Indebtedness of any Person at any date shall be the outstanding balance at such date of all obligations as described above;
provided
,
however
, that in the case of Indebtedness sold at a discount, the amount of such Indebtedness at any time
shall be the accreted value thereof at such time.
The amount
of any Preferred Stock that has a fixed redemption, repayment or repurchase price shall be calculated in accordance with the terms
of such Preferred Stock as if such Preferred Stock were redeemed, repaid or repurchased on any date on which the amount of such
Preferred Stock is to be determined pursuant to this Indenture;
provided
,
however
, that if such Preferred Stock
could not be required to be redeemed, repaid or repurchased at the time of such determination, the redemption, repayment or repurchase
price shall be calculated as of the first date thereafter on which such Preferred Stock could be required to be so redeemed, repaid
or repurchased. If any Preferred Stock does not have a fixed redemption, repayment or repurchase price, the amount of such Preferred
Stock shall be its maximum liquidation value.
“
Indenture
”
means this Indenture as amended or supplemented from time to time.
“
Independent
Qualified Party
” means an investment banking firm, accounting firm or appraisal firm of national standing;
provided
,
however
, that such firm is not an Affiliate of Holdings.
“
Initial
Securities
” means $300,000,000 aggregate principal amount of 5.625% Senior Notes Due 2027 issued on the Issue Date.
“
Interest
Rate Agreement
” means any interest rate swap agreement, interest rate cap agreement or other financial agreement or
arrangement with respect to exposure to interest rates.
“
Investment
”
in any Person means any direct or indirect advance, loan (other than advances to customers in the ordinary course of business
that are recorded as accounts receivable on the balance sheet of the lender) or other extensions of credit (including by way of
Guarantee or similar arrangement) or capital contribution to (by means of any transfer of cash or other property to others or
any payment for property or services for the account or use of others), or any purchase or acquisition of Capital Stock, Indebtedness
or other similar instruments issued by such Person. If Holdings, the Company or any Restricted Subsidiary issues, sells or otherwise
disposes of any Capital Stock of a Person that is a Restricted Subsidiary such that, after giving effect thereto, such Person
is no longer a Restricted Subsidiary, any Investment by Holdings, the
Company
or any Restricted Subsidiary in such Person remaining after giving effect thereto shall be deemed to be a new Investment at such
time. The acquisition by Holdings, the Company or any Restricted Subsidiary of a Person that holds an Investment in a third Person
shall be deemed to be an Investment by Holdings, the Company or such Restricted Subsidiary in such third Person at such time.
Except as otherwise provided for herein, the amount of an Investment shall be its Fair Market Value at the time the Investment
is made and without giving effect to subsequent changes in value.
For purposes
of the definition of “Unrestricted Subsidiary”, the definition of “Restricted Payment” and Section 4.04,
“Investment” shall include
(1)
the portion (proportionate to Holdings’ equity interest in such Subsidiary) of the Fair Market Value of the net assets
of any Subsidiary of Holdings at the time that such Subsidiary is designated an Unrestricted Subsidiary;
provided
,
however
,
that upon a redesignation of such Subsidiary as a Restricted Subsidiary Holdings shall be deemed to continue to have a permanent
“Investment” in an Unrestricted Subsidiary in an amount (if positive) equal to (A) Holdings’ “Investment”
in such Subsidiary at the time of such redesignation less (B) the portion (proportionate to Holdings’ equity interest
in such Subsidiary) of the Fair Market Value of the net assets of such Subsidiary at the time of such redesignation; and
(2)
any property transferred to or from an Unrestricted Subsidiary shall be valued at its Fair Market Value at the time of
such transfer, in each case as determined in good faith by the Board of Directors.
“
Investment
Grade Rating
” mans a rating equal to or higher than Baa3 (or equivalent) by Moody’s and BBB- (or the equivalent)
by Standard and Poor’s, or an equivalent rating by any other Rating Agency.
“
Issue
Date
” means April 25, 2017.
“
Legal
Holiday
” means a Saturday, a Sunday or a day on which banking institutions are not required to be open in the State
of New York.
“
Lien
”
means any mortgage or deed of trust, charge, pledge, lien, security interest, hypothecation, or other encumbrance upon or with
respect to any property of any kind (including any conditional sale, capital lease, other title retention agreement or any leases
in the nature thereof) real or personal, moveable or immovable, now owned or hereafter acquired;
provided
,
however
,
that in no event shall an operating lease be deemed to constitute a Lien. A Person shall be deemed to own subject to a Lien any
property which it has acquired or holds subject to the interest of a vendor or lessor under any conditional sale agreement, Capital
Lease Obligation or other title retention agreement.
“
Moody’s
”
means Moody’s Investors Service, Inc. and any successor to its rating agency business.
“
Net
Available Cash
” from an Asset Disposition means cash payments and the Fair Market Value of any Temporary Cash Investments
received therefrom (including any cash payments received by way of deferred payment of principal pursuant to a note or installment
receivable or otherwise and proceeds from the sale or other disposition of any securities (other than Temporary Cash Investments)
received as consideration, but only as and when received, but excluding any other consideration received in the form of assumption
by the acquiring Person of Indebtedness or other obligations relating to such properties or assets or received in any other non-cash
form), in each case net of:
(1)
all legal, accounting and investment banking fees, title and recording tax expenses, commissions and other fees and expenses
incurred (including any relocation expenses incurred as a result thereof and any related severance and associated costs), and
all Federal, state, provincial, foreign and local taxes required to be accrued as a liability under GAAP, as a consequence of
such Asset Disposition;
(2)
all payments made on any Indebtedness which is secured by any assets subject to such Asset Disposition, in accordance with
the terms of any Lien upon or other security agreement of any kind with respect to such assets, or which must by its terms, or
in order to obtain a necessary consent to such Asset Disposition, or by applicable law, be repaid out of the proceeds from such
Asset Disposition;
(3)
all distributions and other payments required to be made to minority interest holders in Restricted Subsidiaries as a result
of such Asset Disposition;
(4)
the deduction of appropriate amounts provided by the seller as a reserve, in accordance with GAAP, against any liabilities
associated with the property or other assets disposed in such Asset Disposition and retained by Holdings, the Company or any Restricted
Subsidiary after such Asset Disposition; and
(5)
any portion of the purchase price from an Asset Disposition placed in escrow, whether as a reserve for adjustment of the
purchase price, for satisfaction of indemnities in respect of such Asset Disposition or otherwise in connection with that Asset
Disposition;
provided
,
however
, that upon the termination of that escrow, Net Available Cash shall be increased
by any portion of funds in the escrow that are released to Holdings, the Company or any Restricted Subsidiary.
“
Net
Cash Proceeds
”, with respect to any issuance or sale of Capital Stock or Indebtedness, means the cash proceeds of such
issuance or sale net of attorneys’ fees, accountants’ fees, underwriters’ or placement agents’ fees, discounts
or commissions and brokerage, consultant and other fees actually incurred in connection with such issuance or sale and net of
taxes paid or payable as a result thereof.
“
Obligations
”
means, with respect to any Indebtedness, all obligations for principal, premium, interest, penalties, fees, indemnifications,
reimbursements and other amounts payable pursuant to the documentation governing such Indebtedness.
“
Officer
”
means the Chairman of the Board of Directors, the President, any Vice President, the Treasurer or any Assistant Treasurer, the
Secretary or any Assistant Secretary of Holdings. “Officer” of the Company or any other Guarantor has a correlative
meaning.
“
Officer’s
Certificate
” means a certificate signed by one Officer.
“
Opinion
of Counsel
” means a written opinion from legal counsel who is reasonably acceptable to the Trustee. The counsel may
be an employee of or counsel to Holdings or the Trustee (or if such opinion of counsel is in relation to a transaction of any
other Guarantor or the Company, counsel to such other Guarantor or the Company).
“
Permitted
Investment
” means an Investment by Holdings, the Company or any Restricted Subsidiary in:
(1)
Holdings, the Company, a Restricted Subsidiary or a Person that shall, upon the making of such Investment, become a Restricted
Subsidiary;
(2)
another Person if, as a result of such Investment, such other Person is merged or consolidated with or into, or transfers
or conveys all or substantially all its assets to, Holdings, the Company or a Restricted Subsidiary;
(3)
cash and Temporary Cash Investments;
(4)
receivables owing to Holdings, the Company or any Restricted Subsidiary if created or acquired in the ordinary course of
business and payable or dischargeable in accordance with customary trade terms;
provided
,
however
, that such trade
terms may include such concessionary trade terms as Holdings, the Company or any such Restricted Subsidiary deems reasonable under
the circumstances;
(5)
payroll, commission, travel, relocation and similar advances to cover matters that are expected at the time of such advances
ultimately to be treated as expenses for accounting purposes and that are made in the ordinary course of business;
(6)
loans or advances to directors and employees made in the ordinary course of business consistent with past practices of
Holdings, the Company or such Restricted Subsidiary (including, without limitation, loans and advances the net proceeds of which
are used solely to purchase Capital Stock of Holdings in connection with restricted stock or employee stock purchase plans, or
to exercise stock received pursuant thereto on other incentive plans in a principal amount not to exceed the aggregate exercise
or purchase price), or loans to refinance principal and accrued interest on any such loans;
(7)
Investments received (a) in settlement of debts created in the ordinary course of business and owing to Holdings,
the Company or any Restricted Subsidiary, (b) in satisfaction of judgments or (c) in compromise or resolution of litigation,
arbitration or other disputes;
(8)
any Person to the extent such Investment represents the non-cash portion of the consideration received for (a) an
Asset Disposition as permitted pursuant Section 4.06 or (b) a disposition of assets not constituting an Asset Disposition
(including, for the avoidance of doubt, any disposition of the Ethanol Assets or any disposition of shares of Capital Stock of
the Ethanol Subsidiary);
(9)
any Person where such Investment was acquired by Holdings, the Company or any Restricted Subsidiary (a) in connection
with an acquisition, merger, amalgamation or consolidation with or into Holdings, the Company or a Restricted Subsidiary in a
transaction that is not prohibited by this Indenture to the extent that such Investment was not made in contemplation of such
acquisition, merger, amalgamation or consolidation, (b) in exchange for any other Investment or accounts receivable held
by Holdings, the Company or any such Restricted Subsidiary in connection with or as a result of a bankruptcy, workout, reorganization
or recapitalization of the Company of such other Investment or accounts receivable or (c) as a result of a foreclosure by
Holdings, the Company or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect
to any secured Investment in default;
(10)
any Person to the extent such Investments consist of advances, deposits and prepayment for purchases of any assets, prepaid
expenses, negotiable instruments held for collection and lease, utility and workers’ compensation, performance and other
similar deposits made in the ordinary course of business by Holdings, the Company or any Restricted Subsidiary;
(11)
any Person in exchange for Qualified Capital Stock of Holdings;
(12)
any Person to the extent such Investments consist of Hedging Obligations;
(13)
Guarantees of Indebtedness otherwise permitted under Section 4.03 or Guarantees by Holdings, the Company or any Restricted
Subsidiary of operating leases (other than Capital Lease Obligations) or of other obligations that do not constitute Indebtedness,
in each case entered into by Holdings, the Company or a Restricted Subsidiary in the ordinary course of business;
(14)
any Person to the extent such Investment exists on, or any Investment pursuant to a binding agreement that exists on, the
Issue Date, and any extension, modification or renewal of any such Investments, but only to the extent not involving additional
advances, contributions or other Investments of cash or other assets or other increases thereof (other than as a result of the
accrual or accretion of interest or original issue discount or the issuance of pay-in-kind
securities, in each case, pursuant
to the terms of such Investment as in effect on the Issue Date or as otherwise contemplated pursuant to a binding agreement that
exists on the Issue Date);
(15)
any Person to the extent such Investments result solely from the receipt by Holdings, the Company or a Restricted Subsidiary
from any of its Subsidiaries of a dividend or other Restricted Payment in the form of Capital Stock, evidences of Indebtedness
or other securities (but not any additions thereto made after the date of receipt thereof); and
(16)
any Persons to the extent such Investments, when taken together with all other Investments made pursuant to this clause (16)
and outstanding on the date such Investment is made, do not exceed the greater of (A) $100,000,000 and (B) 6.5% of Consolidated
Net Tangible Assets of Holdings, the Company and the Restricted Subsidiaries determined as of the date of such Investment.
For purposes
of this definition, in the event that a proposed Investment (or portion thereof) meets the criteria of more than one of the categories
of Permitted Investments described in clauses (1) through (16) above, Holdings shall be entitled to classify (but not reclassify)
such Investment (or portion thereof) in one or more of such categories set forth above).
“
Permitted
Liens
” means, with respect to any Person:
(1)
pledges or deposits by such Person under worker’s compensation laws, unemployment insurance laws or similar legislation,
or good faith deposits in connection with bids, tenders, contracts (other than for the payment of Indebtedness) or leases to which
such Person is a party, or deposits to secure public or statutory obligations of such Person or deposits of cash or United States
government bonds to secure surety or appeal bonds to which such Person is a party, or deposits as security for contested taxes
or import duties or for the payment of rent, in each case Incurred in the ordinary course of business;
(2)
Liens imposed by law, such as carriers’, warehousemen’s, mechanics’, materialmens’, repairmens’
and other like Liens, in each case for sums not yet due or being contested in good faith by appropriate proceedings or other Liens
arising out of judgments or awards against such Person with respect to which such Person shall then be proceeding with an appeal
or other proceedings for review and Liens arising solely by virtue of any statutory or common law provision relating to banker’s
Liens, rights of set-off or similar rights and remedies as to deposit accounts or other funds maintained with a creditor depository
institution;
provided
,
however
, that (A) such deposit account is not a dedicated cash collateral account and
is not subject to restrictions against access by Holdings in excess of those set forth by regulations promulgated by the Federal
Reserve Board and (B) such deposit account is not intended by Holdings, the Company or any Restricted Subsidiary to provide
collateral to the depository institution;
(3)
Liens for taxes, assessments or governmental charges not yet subject to penalties for non-payment or which are being contested
in good faith by appropriate proceedings;
(4)
Liens in favor of issuers of surety bonds or letters of credit issued pursuant to the request of and for the account of
such Person in the ordinary course of its business;
provided
,
however
, that such letters of credit do not constitute
Indebtedness;
(5)
Liens on specific items of inventory or other goods (and the proceeds thereof) of any Person securing such Person’s
obligations in respect of bankers’ acceptances issued or created in the ordinary course of business for the account of such
Person to facilitate the purchase, shipment or storage of such inventory or other goods;
(6)
leases or licenses with respect to the assets or properties of Holdings, the Company or any Restricted Subsidiary, so long
as such leases or licenses do not, individually or in the aggregate, interfere in any material respect with the ordinary course
of the business of Holdings, the Company or any Restricted Subsidiary;
(7)
filing of Uniform Commercial Code financing statements (or similar filings under applicable law) regarding operating leases;
(8)
survey exceptions, minor encumbrances, easements or reservations of, or rights of others for, licenses, rights-of-way,
sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions as to the use
of real property or Liens incidental to the conduct of the business of such Person or to the ownership of its properties which
were not Incurred in connection with Indebtedness and which do not in the aggregate materially adversely affect the value of said
properties or materially impair their use in the operation of the business of such Person;
(9)
judgment Liens in respect of judgments that do not constitute an Event of Default;
(10)
Liens securing Indebtedness Incurred to finance the construction, purchase or lease of, or repairs, improvements or additions
to, property, plant or equipment of such Person, including Permitted Indebtedness Incurred under Section 4.03(b)(11),
provided
,
however
, that the Lien may not extend to any other property owned by such Person or any of its Restricted Subsidiaries
at the time the Lien is Incurred (other than assets and property affixed or appurtenant thereto, improvements thereon, accessions
thereto, proceeds or replacements in respect thereof);
(11)
Liens to secure Permitted Indebtedness Incurred under Section 4.03(b)(1);
(12)
Liens on assets of any Foreign Subsidiary to secure Indebtedness permitted by Section 4.03(b)(13);
(13)
Liens existing on the Issue Date;
(14)
Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection
with the importation of goods;
(15)
Liens on property or shares of Capital Stock of another Person at the time such other Person becomes a Subsidiary of such
Person (other than a Lien Incurred in connection with, or to provide all or any portion of the funds or credit support utilized
to consummate, the transaction or series of transactions pursuant to which such Person becomes such a Subsidiary);
provided
,
however
, that the Liens may not extend to any other property owned by such Person or any of its Restricted Subsidiaries
(other than assets and property affixed or appurtenant thereto, improvements thereon, accessions thereto, proceeds thereof or
replacements in respect thereof);
(16)
Liens on property at the time such Person or any of its Subsidiaries acquires the property, including any acquisition by
means of a merger or consolidation with or into such Person or a Subsidiary of such Person (other than a Lien Incurred in connection
with, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of transactions
pursuant to which such Person or any of its Subsidiaries acquired such property);
provided
,
however
, that the Liens
may not extend to any other property owned by such Person or any of its Restricted Subsidiaries (other than assets and property
affixed or appurtenant thereto, improvements thereon, accessions thereto, proceeds thereof or replacements in respect thereof);
(17)
Liens securing Indebtedness or other obligations of a Subsidiary of such Person owing to such Person or a Wholly Owned
Subsidiary of such Person;
(18)
Liens securing Hedging Obligations so long as such Hedging Obligations are permitted to be Incurred under this Indenture;
(19)
Liens in favor of Holdings, the Company or any Subsidiary Guarantor;
(20)
Liens created for the benefit of (or to secure) the Securities (or the Guarantees of the Securities) or payment obligations
to the Trustee in respect thereof;
(21)
Liens to secure any Refinancing (or successive Refinancings) as a whole, or in part, of any Indebtedness secured by any
Lien referred to in the foregoing clause (10), (13), (15) or (16);
provided
,
however
, that (A) such new
Lien shall be limited to all or part of the same property and assets that secured or, under the written agreements pursuant to
which the original Lien arose, could
secure the original Lien (plus improvements and accessions to, such property or proceeds
or distributions thereof) and (B) the Indebtedness secured by such Lien at such time is not increased to any amount greater
than the sum of (i) the outstanding principal amount or, if greater, committed amount of the Indebtedness described under
clause (10), (13), (15) or (16) at the time the original Lien became a Permitted Lien and (ii) an amount necessary to
pay any fees and expenses, including premiums, related to such Refinancing;
(22)
Liens Incurred to secure cash management services in the ordinary course of business;
(23)
Liens on assets pursuant to merger agreements, stock or asset purchase agreements and similar agreements limiting the disposition
of such assets pending the closing of the transactions contemplated thereby;
(24)
Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto;
(25)
Liens on any cash earnest money deposits, escrow arrangements or similar arrangements made by Holdings, the Company or
any Restricted Subsidiary in connection with any letter of intent or purchase agreement;
(26)
other Liens securing Indebtedness;
provided
,
however
, that at the time of incurrence after giving
pro
forma
effect thereto, the Consolidated Secured Leverage Ratio would be no greater than 1.5 to 1.0;
(27)
Liens with respect to obligations that are at any one time outstanding not to exceed the greater of (i) $65,000,000
and (ii) 4% of Consolidated Net Tangible Assets of Holdings, the Company and the Restricted Subsidiaries determined as of
the date of such Incurrence; and
(28)
Liens incurred in connection with a Sale/Leaseback Transaction Incurred pursuant to Section 4.03(b)(14) of this Indenture.
Notwithstanding the foregoing,
“Permitted Liens” shall not include any Lien described in clause (10), (15) or (16) above to the extent such
Lien applies to any Additional Assets acquired directly or indirectly from Net Available Cash pursuant to Section 4.06. For purposes
of this definition, the term “Indebtedness” shall be deemed to include interest on such Indebtedness.
“
Person
”
means any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision thereof or any other entity.
“
Preferred
Stock
”, as applied to the Capital Stock of any Person, means Capital Stock of any class or classes (however designated)
which is preferred as to the payment of dividends or distributions, or as to the distribution of assets upon any
voluntary
or involuntary liquidation or dissolution of such Person, over shares of Capital Stock of any other class of such Person.
“
principal
”
of a Security means the principal of the Security plus the premium, if any, payable on the Security which is due or overdue or
is to become due at the relevant time.
“
Prospectus
”
means the prospectus dated August 31, 2016, as supplemented by the prospectus supplement dated April 20, 2017, related to the
offering of the Initial Securities.
“
Purchase
Money Indebtedness
” means Indebtedness (including Capital Lease Obligations) (1) consisting of the deferred purchase
price of property, conditional sale obligations, obligations under any title retention agreement, other purchase money obligations
and obligations in respect of industrial revenue bonds or similar Indebtedness, in each case where the maturity of such Indebtedness
does not exceed the anticipated useful life of the asset being financed, and (2) (i) Incurred to finance the acquisition
by Holdings, the Company or a Restricted Subsidiary of such asset, including additions and improvements or (ii) assumed in
connection with the acquisition of any fixed or capital assets;
provided
,
however
, that any Lien arising in connection
with any such Indebtedness shall be limited to the specific asset being financed or, in the case of real property or fixtures,
including additions and improvements, the real property on which such asset is attached;
provided further
,
however
,
that such Indebtedness is Incurred no later than 180 days after such acquisition of such assets.
“
Qualified
Capital Stock
” of a Person means Capital Stock of such Person other than Disqualified Stock;
provided
,
however
,
that such Capital Stock shall not be deemed Qualified Capital Stock to the extent sold to a Subsidiary of such Person or financed,
directly or indirectly, using funds (1) borrowed from such Person or any Subsidiary of such Person or (2) contributed,
extended, guaranteed or advanced by such Person or any Subsidiary of such Person (including, in respect of any employee stock
ownership or benefit plan). Unless otherwise specified, Qualified Capital Stock refers to Qualified Capital Stock of Holdings.
“
Qualified
Equity Offering
” means any public or private issuance and sale of Holdings’ common stock by Holdings;
provided
,
however
, that the cash proceeds therefrom equal to not less than 100% of the aggregate principal amount of any Securities
to be redeemed are received by the Company as a contribution to its common equity capital. Notwithstanding the foregoing, the
term “Qualified Equity Offering” shall not include:
(1)
any issuance and sale with respect to common stock registered on Form S-4 or Form S-8; or
(2) any
issuance and sale to any Subsidiary of Holdings.
“
Quotation
Agent
” means the Reference Treasury Dealer selected by the Trustee after consultation with Holdings.
“
Rating
Agencies
” means Standard & Poor’s and Moody’s or if Standard & Poor’s or Moody’s or
both shall not make a rating on the Securities publicly available, a nationally recognized statistical rating agency or agencies,
as the case may be, selected by Holdings (as certified by a resolution of the Board of Directors) which shall be substituted for
Standard & Poor’s or Moody’s or both, as the case may be.
“
Reference
Treasury Dealer
” means J.P. Morgan Securities LLC and its successors and assigns and two other nationally recognized
investment banking firms selected by Holdings that are primary U.S. Government securities dealers.
“
Reference
Treasury Dealer Quotations
” means with respect to each Reference Treasury Dealer and any redemption date, the average,
as determined by the Trustee, of the bid and asked prices for the Comparable Treasury Issue, expressed in each case as a percentage
of its principal amount, quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New York City time,
on the third Business Day immediately preceding such redemption date.
“
Refinance
”
means, in respect of any Indebtedness, to refinance, extend, renew, refund, repay, prepay, redeem, defease or retire, or to issue
other Indebtedness in exchange or replacement for, such Indebtedness. “Refinanced” and “Refinancing” shall
have correlative meanings.
“
Refinancing
Indebtedness
” means Indebtedness that Refinances any Indebtedness of Holdings, the Company or any Restricted Subsidiary
existing on the Issue Date or Incurred in compliance with this Indenture, including Indebtedness that Refinances Refinancing Indebtedness;
provided
,
however
, that:
(1)
such Refinancing Indebtedness has a Stated Maturity no earlier than the Stated Maturity of the Indebtedness being Refinanced;
(2)
such Refinancing Indebtedness has an Average Life at the time such Refinancing Indebtedness is Incurred that is equal to
or greater than the Average Life of the Indebtedness being Refinanced;
(3)
such Refinancing Indebtedness has an aggregate principal amount (or if Incurred with original issue discount, an aggregate
issue price) that is equal to or less than the aggregate principal amount (or if Incurred with original issue discount, the aggregate
accreted value) then outstanding (plus accrued and unpaid interest and any related fees and expenses in connection with such Refinancing,
including any premium and defeasance costs) under the Indebtedness being Refinanced; and
(4)
if the Indebtedness being Refinanced is subordinated in right of payment to the Securities, such Refinancing Indebtedness
is subordinated in right of payment to the Securities at least to the same extent as the Indebtedness being Refinanced;
provided further
,
however
,
that Refinancing Indebtedness shall not include (A) Indebtedness of a Subsidiary that Refinances Indebtedness of the Company
or Holdings or (B) Indebtedness of Holdings, the Company or a Restricted Subsidiary that Refinances Indebtedness of an Unrestricted
Subsidiary.
“
Related
Business
” means any business in which Holdings, the Company or any of the Restricted Subsidiaries was engaged on the
Issue Date and any business related ancillary or complementary to such business.
“
Restricted
Payment
” with respect to any Person means:
(1)
the declaration or payment of any dividends or any other distributions of any sort in respect of its Capital Stock (including
any payment in connection with any merger or consolidation involving such Person) or similar payment to the direct or indirect
holders of its Capital Stock (other than (A) dividends or distributions payable solely in its Capital Stock (other than Disqualified
Stock), (B) dividends or distributions payable solely to Holdings, the Company or a Restricted Subsidiary and (C)
pro
rata
dividends or other distributions made by a Subsidiary that is not a Wholly Owned Subsidiary to minority stockholders
(or owners of an equivalent interest in the case of a Subsidiary that is an entity other than a corporation));
(2)
the purchase, repurchase, redemption, defeasance or other acquisition or retirement for value of any Capital Stock of Holdings
held by any Person (other than by the Company or a Restricted Subsidiary) or of any Capital Stock of the Company or a Restricted
Subsidiary held by any Affiliate of Holdings (other than by the Company or a Restricted Subsidiary), including in connection with
any merger or consolidation and including the exercise of any option to exchange any Capital Stock (other than into Capital Stock
of Holdings that is not Disqualified Stock);
(3)
the purchase, repurchase, redemption, defeasance or other acquisition or retirement for value, prior to scheduled maturity,
scheduled repayment or scheduled sinking fund payment of any Subordinated Obligations of Holdings, the Company or any Subsidiary
Guarantor (other than (A) from Holdings, the Company or any Restricted Subsidiary or (B) the purchase, repurchase, redemption,
defeasance or other acquisition or retirement of Subordinated Obligations purchased in anticipation of satisfying a sinking fund
obligation, principal installment or final maturity, in each case due within one (1) year of the date of such purchase, repurchase,
redemption, defeasance or other acquisition or retirement); or
(4)
the making of any Investment (other than a Permitted Investment) in any Person.
The amount
of any Restricted Payment if made otherwise than in cash shall be Fair Market Value of the assets subject thereto.
“
Restricted
Subsidiary
” means any Subsidiary of Holdings that is not an Unrestricted Subsidiary,
provided
that the Company
shall not be considered a Restricted Subsidiary or an Unrestricted Subsidiary.
“
Sale/Leaseback
Transaction
” means an arrangement relating to property owned by Holdings, the Company or a Restricted Subsidiary on
the Issue Date or thereafter acquired by Holdings, the Company or a Restricted Subsidiary whereby Holdings, the Company or a Restricted
Subsidiary transfers such property to a Person and Holdings, the Company or a Restricted Subsidiary leases it from such Person.
“
SEC
”
means the U.S. Securities and Exchange Commission.
“
Securities
Act
” means the U.S. Securities Act of 1933, as amended.
“
Senior
Credit Agreement
” means the amended and restated credit agreement entered into on August 30, 2013, among the Company,
as borrower, Holdings, as guarantor, the other guarantors party thereto, J.P. Morgan Securities LLC, as lead arranger, and JPMorgan
Chase Bank, N.A., as administrative agent and collateral agent, providing for a senior secured asset-based loan credit facility
and term facility, as amended and restated on March 10, 2016, and as further amended, restated, replaced (whether before, upon
or after termination or otherwise), refinanced, supplemented, modified or otherwise changed (in whole or in part, and without
limitation as to amount, terms, conditions, covenants and other provisions) from time to time.
“
Senior
Indebtedness
” means with respect to any Person:
(1)
Indebtedness of such Person, whether outstanding on the Issue Date or thereafter Incurred; and
(2)
all other Obligations of such Person (including interest accruing on or after the filing of any petition in bankruptcy
or for reorganization relating to such Person whether or not post-filing interest is allowed in such proceeding) in respect of
Indebtedness described in clause (1) above,
unless, in the case of clauses (1)
and (2), in the instrument creating or evidencing the same or pursuant to which the same is outstanding, it is provided that such
Indebtedness or other Obligations are subordinate in right of payment to the Securities or the Guarantee of such Person, as the
case may be;
provided
,
however
, that Senior Indebtedness shall not include:
(A)
any obligation of such Person to Holdings, the Company or any Subsidiary of Holdings;
(B)
any liability for Federal, state, local or other taxes owed or owing by such Person;
(C)
any accounts payable or other liability to trade creditors arising in the ordinary course of business;
(D)
any Capital Stock;
(E)
any Indebtedness or other Obligation of such Person which is subordinate or junior in any respect to any other Indebtedness
or other Obligation of such Person;
(F)
that portion of any Indebtedness which at the time of Incurrence is Incurred in violation of this Indenture;
(G)
any Indebtedness, which, when Incurred and without respect to any election under Section 111(b) of Title 11, United
States Code, is without recourse to such Person;
(H)
any Indebtedness of or amounts owed by such Person for compensation to employees or for services rendered to another Person;
and
(I)
Indebtedness of such Person to a Subsidiary or any other Affiliate or any such Affiliate’s Subsidiaries.
“
Significant
Subsidiary
” means any Restricted Subsidiary that would be a significant subsidiary of Holdings within the meaning of
Rule 1-02 of Regulation S-X promulgated by the SEC.
“
Spin-Off
Documents
” means the Separation and Distribution Agreement, the Transition Services Agreement, the Tax Matters Agreement,
the Employee Matters Agreement, the Trademark License Agreement, the Lease Agreement for 200 Peach Street, El Dorado, Arkansas,
the Hangar Rental Agreement, the Aircraft Maintenance Labor Pooling Agreement and the Airplane Interchange Agreement, each between
Murphy Oil Corporation and Holdings dated August 30, 2013 and each as filed as an exhibit to Holdings’ Current Report on
Form 8-K filed on September 5, 2013, together with any other agreements, instruments or other documents entered into in connection
with any of the foregoing.
“
Standard
& Poor’s
” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc.,
and any successor to its rating agency business.
“
Stated
Maturity
” means, with respect to any security, the date specified in such security as the fixed date on which the final
payment of principal of such security is due and payable, including pursuant to any mandatory redemption provision (but excluding
any provision providing for the repurchase of such security at the option of the holder thereof upon the happening of any contingency
unless such contingency has occurred).
“
Subordinated
Obligation
” means, with respect to a Person, any Indebtedness of such Person (whether outstanding on the Issue Date
or thereafter Incurred) which is subordinate or junior in right of payment to the Securities or a
Guarantee
of the Securities of such Person, as the case may be, pursuant to a written agreement to that effect.
“
Subsidiary
”
means, with respect to any Person, any corporation, association, partnership or other business entity of which more than 50% of
the total voting power of shares of Voting Stock is at the time owned or controlled, directly or indirectly, by (1) such
Person, (2) such Person and one or more Subsidiaries of such Person or (3) one or more Subsidiaries of such Person.
“
Subsidiary
Guarantee
” means a Guarantee by a Subsidiary Guarantor of the Company’s obligations with respect to the Securities.
“
Subsidiary
Guarantor
” means each Subsidiary of Holdings that executes this Indenture as a guarantor and each other Subsidiary of
Holdings that thereafter guarantees the Securities pursuant to the terms of this Indenture.
“
Temporary
Cash Investments
” means any of the following:
(1)
any investment in direct obligations of the United States of America or any agency thereof or obligations guaranteed by
the United States of America or any agency thereof;
(2)
investments in demand and time deposit accounts, certificates of deposit and money market deposits maturing within one
year of the date of acquisition thereof issued by a bank or trust company which is organized under the laws of the United States
of America, any State thereof or any foreign country recognized by the United States of America, and which bank or trust company
has capital, surplus and undivided profits aggregating in excess of $50,000,000 (or the foreign currency equivalent thereof) and
has outstanding debt which is rated “A” (or such similar equivalent rating) or higher by at least one nationally recognized
statistical rating organization (as defined in Section 3(a)(62) of the Exchange Act) or any money-market fund sponsored by
a registered broker dealer or mutual fund distributor;
(3)
repurchase obligations with a term of not more than thirty (30) days for underlying securities of the types described
in clause (1) above entered into with a bank meeting the qualifications described in clause (2) above;
(4)
investments in commercial paper, maturing not more than 364 days after the date of acquisition, issued by a corporation
(other than an Affiliate of Holdings) organized and in existence under the laws of the United States of America or any foreign
country recognized by the United States of America with a rating at the time as of which any investment therein is made of “P-1”
(or higher) according to Moody’s or “A-1” (or higher) according to Standard & Poor’s;
(5)
investments in securities with maturities of twenty-four (24) months or less from the date of acquisition issued or fully
guaranteed by any state,
commonwealth or territory of the United States of America, or by any political subdivision or taxing
authority thereof, and rated at least “A” by Standard & Poor’s or “A” by Moody’s;
(6)
investments in money market funds that invest substantially all their assets in securities of the types described in clauses (1)
through (5) above; and
(7)
to the extent held by a Foreign Subsidiary, other short-term Investment utilized by such Foreign Subsidiary in accordance
with normal investment practices for cash management in Investments of a type analogous to those described in clauses (1)
through (6) of this definition.
“
TIA
”
means the Trust Indenture Act of 1939, as amended (15
U.S.C.
§§ 77aaa-77bbbb) as in effect on the date
of this Indenture.
“
Trustee
”
means the party named as such in this Indenture until a successor replaces it and, thereafter, means the successor.
“
Trust
Officer
” means the Chairman of the Board, the President or any other officer or assistant officer of the Trustee assigned
by the Trustee to administer its corporate trust matters.
“
Uniform
Commercial Code
” means the New York Uniform Commercial Code as in effect from time to time.
“
Unrestricted
Subsidiary
” means:
(1)
the Ethanol Subsidiary;
(2)
any Subsidiary of Holdings (other than the Company) that at the time of determination shall be designated an Unrestricted
Subsidiary by the Board of Directors in the manner provided below; and
(3)
any Subsidiary of an Unrestricted Subsidiary.
The Board of
Directors may designate any Subsidiary of Holdings other than the Company (including any newly acquired or newly formed Subsidiary
(or any Person becoming a Subsidiary through merger or consolidation or Investment therein)) to be an Unrestricted Subsidiary
unless such Subsidiary or any of its Subsidiaries owns any Capital Stock or Indebtedness of, or holds any Lien on any property
of, Holdings or any other Subsidiary of Holdings that is not a Subsidiary of the Subsidiary to be so designated;
provided
,
however
, that either (A) the Subsidiary to be so designated has total assets of $1,000 or less or (B) if such
Subsidiary has assets greater than $1,000, such designation would be permitted under Section 4.04.
If at any time
Holdings or the Company delivers a written notice to the Trustee designating any Unrestricted Subsidiaries to be a Restricted
Subsidiary, any such
Subsidiary
shall cease to be an Unrestricted Subsidiary immediately upon the Trustee’s receipt of such notice.
“
U.S.
Dollar Equivalent
” means with respect to any monetary amount in a currency other than U.S. dollars, at any time for
determination thereof, the amount of U.S. dollars obtained by converting such foreign currency involved in such computation into
U.S. dollars at the spot rate for the purchase of U.S. dollars with the applicable foreign currency as published in
The Wall
Street Journal
in the “Exchange Rates” column under the heading “Currency Trading” (or comparable
source, if
The Wall Street Journal
ceases to publish these rates) on the date two (2) Business Days prior to such
determination.
Except as described
under 4.03, whenever it is necessary to determine whether the Company or any of the Guarantors has complied with any covenant
in this Indenture or a Default has occurred and an amount is expressed in a currency other than U.S. dollars, such amount shall
be treated as the U.S. Dollar Equivalent determined as of the date such amount is initially determined in such currency.
“
U.S.
Government Obligations
” means direct obligations (or certificates representing an ownership interest in such obligations)
of the United States of America (including any agency or instrumentality thereof) for the payment of which the full faith and
credit of the United States of America is pledged and which are not callable at the Company’s option.
“
Voting
Stock
” of a Person means all classes of Capital Stock of such Person then outstanding and normally entitled (without
regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof.
“
Wholly
Owned Subsidiary
” means a Restricted Subsidiary all the Capital Stock of which (other than directors’ qualifying
shares) is owned directly or indirectly by Holdings or one or more other Wholly Owned Subsidiaries.
SECTION 1.02.
Other Definitions.
|
Term
|
Defined
in
Section
|
|
“Affiliate Transaction”
|
4.07(a)
|
|
“Appendix”
|
2.01
|
|
“Asset Sale Offer”
|
4.06(b)
|
|
“Asset Sale Offer Amount”
|
4.06(c)(2)
|
|
“Asset Sale Offer Period”
|
4.06(c)(2)
|
|
“Bankruptcy Law”
|
6.01
|
|
“Change of Control Offer”
|
4.08(b)
|
|
“covenant defeasance option”
|
8.01(b)
|
|
“Coverage Indebtedness”
|
4.03(a)
|
|
“Custodian”
|
6.01
|
|
“Event of Default”
|
6.01
|
|
“Guaranteed Obligations”
|
10.01
|
|
“Initial Lien”
|
4.09
|
|
“legal defeasance option”
|
8.01(b)
|
|
“Notice of Default”
|
6.01
|
|
“Paying Agent”
|
2.03
|
|
“Permitted Indebtedness”
|
4.03(b)
|
|
“Purchase Date”
|
4.06(c)(1)
|
|
“Registrar”
|
2.03
|
|
“Reversion Date”
|
4.11(b)
|
|
“Successor Holdings”
|
5.01(a)(1)
|
|
“Successor Company”
|
5.01(b)(1)
|
|
“Suspended Covenants”
|
4.11(a)
|
|
“Suspension Date”
|
4.11(a)
|
|
“Suspension Period”
|
4.11(b)
|
Additional
defined terms are as defined in the Appendix.
SECTION 1.03.
Incorporation by Reference of Trust Indenture Act.
This Indenture is subject to the mandatory provisions of the
TIA which are incorporated by reference in and made a part of this Indenture. The following TIA terms have the following meanings:
“Commission”
means the SEC;
“indenture
securities” means the Securities and the Guarantees;
“indenture
security holder” means a Securityholder;
“indenture
to be qualified” means this Indenture;
“indenture
trustee” or “institutional trustee” means the Trustee; and
“obligor”
on the indenture securities means the Company each Guarantor and any other obligor on the indenture securities.
All other TIA
terms used in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by SEC rule have
the meanings assigned to them by such definitions.
SECTION 1.04.
Rules of Construction.
Unless the context otherwise requires:
(1)
a term has the meaning assigned to it;
(2)
an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
(3)
“or” is not exclusive;
(4)
“including” means including without limitation;
(5)
words in the singular include the plural and words in the plural include the singular;
(6)
unsecured Indebtedness shall not be deemed to be subordinate or junior to secured Indebtedness merely by virtue of its
nature as unsecured Indebtedness;
(7)
secured Indebtedness shall not be deemed to be subordinate or junior to any other secured Indebtedness merely because it
has a junior priority with respect to the same collateral;
(8)
the principal amount of any noninterest bearing or other discount security at any date shall be the principal amount thereof
that would be shown on a balance sheet of the issuer dated such date prepared in accordance with GAAP;
(9)
the principal amount of any Preferred Stock shall be (A) the maximum liquidation value of such Preferred Stock or
(B) the maximum mandatory redemption or mandatory repurchase price with respect to such Preferred Stock, whichever is greater;
and
(10)
all references to the date the Securities were originally issued shall refer to the date the Issue Date.
Article
2
The Securities
SECTION 2.01.
Form and Dating.
Provisions relating to the Securities are set forth in the Appendix attached hereto as Appendix
A (the “
Appendix
”) which is hereby incorporated in, and expressly made part of, this Indenture. The Initial
Securities and the Trustee’s certificate of authentication shall be substantially in the form of
Exhibit A
hereto,
which is hereby incorporated in, and expressly made a part of, this Indenture. The Securities may have notations, legends or endorsements
required by law, stock exchange rule, agreements to which the Company is subject, if any, or usage (provided that any such notation,
legend or endorsement is in a form acceptable to the Company). Each Security shall be dated the date of its authentication. The
terms of the Securities set forth in the Appendix and
Exhibit A
are part of the terms of this Indenture. However, to the
extent any provision of any Security conflicts with the express provisions of this Indenture, the provisions of this Indenture
shall govern and be controlling.
SECTION 2.02.
Execution and Authentication.
One Officer shall sign the Securities for the Company by manual or facsimile signature.
If an Officer
whose signature is on a Security no longer holds that office at the time the Trustee authenticates the Security, the Security
shall be valid nevertheless.
A Security
shall not be valid until an authorized signatory of the Trustee manually signs the certificate of authentication on the Security.
The signature shall be conclusive evidence that the Security has been authenticated under this Indenture.
On the Issue
Date, the Trustee shall authenticate and deliver $300,000,000 of 5.625% Senior Notes Due 2027 and, at any time and from time to
time thereafter, the Trustee shall authenticate and deliver Securities for original issue in an aggregate principal amount specified
in such order, in each case upon a written order of the
Company
signed by an Officer of the Company. Such order shall specify the amount of the Securities to be authenticated and the date on
which the original issue of Securities is to be authenticated and, in the case of an issuance of Additional Securities pursuant
to Section 2.13 after the Issue Date, shall certify that such issuance is in compliance with Section 4.03.
The Trustee
may appoint an authenticating agent reasonably acceptable to the Company to authenticate the Securities. Unless limited by the
terms of such appointment, an authenticating agent may authenticate Securities whenever the Trustee may do so. Each reference
in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same
rights as any Registrar, Paying Agent or agent for service of notices and demands.
SECTION 2.03.
Registrar and Paying Agent.
The Company shall maintain an office or agency where Securities may be presented for
registration of transfer or for exchange (the “
Registrar
”) and an office or agency where Securities may be
presented for payment (the “
Paying Agent
”). The Registrar shall keep a register of the Securities and of their
transfer and exchange. The Company may have one or more co-registrars and one or more additional paying agents. The term “Paying
Agent” includes any additional paying agent.
The Company
shall enter into an appropriate agency agreement with any Registrar, Paying Agent or co-registrar not a party to this Indenture,
which shall incorporate the terms of the TIA. The agreement shall implement the provisions of this Indenture that relate to such
agent. The Company shall notify the Trustee of the name and address of any such agent. If the Company fails to maintain a Registrar
or Paying Agent, the Trustee shall act as such and shall be entitled to appropriate compensation therefor pursuant to Section
7.07. The Company or any Wholly Owned Subsidiary incorporated or organized within The United States of America may act as Paying
Agent, Registrar, co-registrar or transfer agent.
The Company
initially appoints the Trustee as Registrar and Paying Agent in connection with the Securities.
SECTION 2.04.
Paying Agent To Hold Money in Trust.
Prior to each due date of the principal and interest on any Security, the Company
shall deposit with the Paying Agent a sum sufficient to pay such principal and interest when so becoming due. The Company shall
require each Paying Agent (other than the Trustee) to agree in writing that the Paying Agent shall hold in trust for the benefit
of Securityholders or the Trustee all money held by the Paying Agent for the payment of principal of or interest on the Securities
and shall notify the Trustee of any default by the Company in making any such payment. If the Company 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 Company at any
time may require a Paying Agent to pay all money held by it to the Trustee and to account for any funds disbursed by the Paying
Agent. Upon complying with this Section, the Paying Agent shall have no further liability for the money delivered to the Trustee.
SECTION 2.05.
Securityholder 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 Securityholders. If the Trustee is not the Registrar, the Company shall furnish
to the Trustee, in writing at least five Business Days before each interest payment date and at such other times as the Trustee
may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses
of Securityholders.
SECTION 2.06.
Transfer and Exchange.
The Securities shall be issued in registered form and shall be transferable only upon the
surrender of a Security for registration of transfer. When a Security is presented to the Registrar or a co-registrar with a request
to register a transfer, the Registrar shall register the transfer as requested if the requirements of this Indenture and Section 8-401(1)
of the Uniform Commercial Code are met. When Securities are presented to the Registrar or a co-registrar with a request to exchange
them for an equal principal amount of Securities of other denominations, the Registrar shall make the exchange as requested if
the same requirements are met.
SECTION 2.07.
Replacement Securities.
If a mutilated Security is surrendered to the Registrar or if the Holder of a Security claims
that the Security has been lost, destroyed or wrongfully taken, the Company shall issue and the Trustee shall authenticate a replacement
Security if the requirements of Section 8-405 of the Uniform Commercial Code are met and the Holder satisfies any other reasonable
requirements of the Trustee. If required by the Trustee or the Company, such Holder shall furnish an indemnity bond sufficient
in the judgment of the Company and the Trustee to protect the Company, the Trustee, the Paying Agent, the Registrar and any co-registrar
from any loss which any of them may suffer if a Security is replaced. The Company and the Trustee may charge the Holder for their
expenses in replacing a Security.
Every replacement
Security is an additional Obligation of the Company.
SECTION 2.08.
Outstanding Securities.
Securities outstanding at any time are all Securities authenticated by the Trustee except
for those canceled by it, those delivered to it for cancellation and those described in this Section as not outstanding. Subject
to Section 11.06, a Security does not cease to be outstanding because the Company or an Affiliate of the Company holds the Security.
If a Security
is replaced pursuant to Section 2.07, it ceases to be outstanding unless the Trustee and the Company receive proof satisfactory
to them that the replaced Security is held by a protected purchaser (as defined in Section 8-303 of the Uniform Commercial Code).
If the Paying
Agent segregates and holds in trust, in accordance with this Indenture, on a redemption date or maturity date money sufficient
to pay all principal and interest payable on that date with respect to the Securities (or portions thereof) to be redeemed or
maturing, as the case may be, then on and after that date such Securities (or portions thereof) cease to be outstanding and interest
on them ceases to accrue.
SECTION 2.09.
Temporary Securities.
Until definitive Securities are ready for delivery, the Company may prepare and the Trustee
shall authenticate temporary Securities. Temporary Securities shall be substantially in the form of definitive Securities but
may have variations that the Company considers appropriate for temporary Securities. Without unreasonable delay, the Company shall
prepare and the Trustee shall authenticate definitive Securities and deliver them in exchange for temporary Securities.
SECTION 2.10.
Cancellation.
The Company at any time may deliver Securities to the Trustee for cancellation. The Registrar and
the Paying Agent shall forward to the Trustee any Securities surrendered to them for registration of transfer, exchange or payment.
The Trustee and no one else shall cancel and destroy (subject to the record retention requirements of the Exchange Act) all Securities
surrendered for registration of transfer, exchange, payment or cancellation and deliver a certificate of such destruction to the
Company unless the Company directs the Trustee to deliver canceled Securities to the Company. The Company may not issue new Securities
to replace Securities it has redeemed, paid or delivered to the Trustee for cancellation.
SECTION 2.11.
Defaulted Interest.
If the Company defaults in a payment of interest on the Securities, the Company shall pay defaulted
interest (plus interest on such defaulted interest to the extent lawful) in any lawful manner. The Company may pay the defaulted
interest to the persons who are Securityholders on a subsequent special record date. The Company shall fix or cause to be fixed
any such special record date and payment date to the reasonable satisfaction of the Trustee and shall promptly mail to each Securityholder
a notice that states the special record date, the payment date and the amount of defaulted interest to be paid.
SECTION 2.12.
CUSIP Numbers, ISINs, etc.
The Company in issuing the Securities may use “CUSIP” numbers,
ISINs and “Common Code” numbers (in each case if then generally in use) and, if so, the Trustee shall use “CUSIP”
numbers, ISINs and “Common Code” 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 Securities
or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed
on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Company shall
advise the Trustee in writing of any change in any “CUSIP” numbers, ISINs or “Common Code” numbers applicable
to the Securities.
SECTION 2.13.
Issuance of Additional Securities.
After the Issue Date, the Company shall be entitled, subject to its compliance
with Section 4.03, to issue Additional Securities under this Indenture, which Securities shall have identical terms as the
Initial Securities issued on the Issue Date, other than with respect to the date of issuance and issue price. All the Securities
issued under this Indenture shall be treated as a single class for all purposes of this Indenture including waivers, amendments,
redemptions and offers to purchase,
provided
,
however
, that in the event that any Additional Securities are not
fungible with the Securities for Federal income tax
purposes,
such nonfungible Additional Securities shall be issued with a separate CUSIP or ISIN number so that they are distinguishable from
the Securities.
With respect
to any Additional Securities, the Company shall set forth in a resolution of the Board of Directors and an Officer’s Certificate,
a copy of each which shall be delivered to the Trustee, the following information:
(1)
the aggregate principal amount of such Additional Securities to be authenticated and delivered pursuant to this Indenture
and the provision of Section 4.03 that the Company is relying on to issue such Additional Securities; and
(2)
the issue price, the issue date and the CUSIP number of such Additional Securities.
Article
3
Redemption
SECTION 3.01.
Notices to Trustee.
If the Company elects to redeem Securities pursuant to paragraph 5 of the Securities, it
shall notify the Trustee in writing of the redemption date, the principal amount of Securities to be redeemed and the paragraph
of the Securities or the Section of this Indenture pursuant to which the redemption shall occur.
The Company
shall give each notice to the Trustee provided for in this Section at least 5 Business Days before a notice of redemption is required
to be delivered pursuant to Section 3.03 unless the Trustee consents to a shorter period. Such notice shall be accompanied by
an Officer’s Certificate and an Opinion of Counsel from the Company to the effect that such redemption shall comply with
the conditions herein.
SECTION 3.02.
Selection of Securities to Be Redeemed.
If fewer than all the Securities are to be redeemed, the Trustee shall select
the Securities to be redeemed
pro rata
to the extent practicable. The Trustee shall make the selection from outstanding
Securities not previously called for redemption. The Trustee may select for redemption portions of the principal of Securities
that have denominations larger than $2,000. Securities and portions of them the Trustee selects shall be in principal amounts
of $2,000 or any greater integral multiple of $1,000 thereof. Provisions of this Indenture that apply to Securities called for
redemption also apply to portions of Securities called for redemption. The Trustee shall notify the Company promptly of the Securities
or portions of Securities to be redeemed.
SECTION 3.03.
Notice of Redemption.
At least 30 days but not more than 60 days before a date for redemption of Securities,
the Company shall mail a notice of redemption by first-class mail to each Holder of Securities to be redeemed at such Holder’s
registered address, except that redemption notices may be mailed more than 60 days prior to the redemption date if the notice
is issued in connection with a defeasance of the Securities or a satisfaction and discharge of this Indenture. Any
inadvertent
defect in the notice of redemption, including an inadvertent failure to give notice, to any Holder selected for redemption shall
not impair or affect the validity of the redemption of any other Security redeemed in accordance with provisions of this Indenture.
The notice
shall identify the Securities to be redeemed and shall state:
(1)
the redemption date;
(2)
the redemption price;
(3)
the name and address of the Paying Agent;
(4)
that Securities called for redemption must be surrendered to the Paying Agent to collect the redemption price;
(5)
if fewer than all the outstanding Securities are to be redeemed, the identification and principal amounts of the particular
Securities to be redeemed;
(6)
that, unless the Company defaults in making such redemption payment, interest on Securities (or portion thereof) called
for redemption ceases to accrue on and after the redemption date;
(7)
the paragraph of the Securities or Section of this Indenture pursuant to which the Securities called for redemption are
being redeemed;
(8)
the “CUSIP” number, ISIN or “Common Code” number, if any, printed on the Securities being redeemed;
and
(9)
that no representation is made as to the correctness or accuracy of the “CUSIP” number, ISIN, or “Common
Code” number, if any, listed in such notice or printed on the Securities.
At the Company’s
request, the Trustee shall give the notice of redemption in the Company’s name and at the Company’s expense. In such
event, the Company shall provide the Trustee with the information required by this Section.
SECTION 3.04.
Effect of Notice of Redemption.
Once notice of redemption is mailed, Securities called for redemption become due
and payable on the redemption date and at the redemption price stated in the notice. Upon surrender to the Paying Agent, such
Securities shall be paid at the redemption price stated in the notice, plus accrued interest to the redemption date (subject to
the right of Holders of record on the relevant record date to receive interest due on the related interest payment date), and
such Securities shall be canceled by the Trustee. 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 3.05.
Deposit of Redemption Price.
Prior to the redemption date, the Company shall deposit with the Paying Agent (or,
if the Company
or
a Subsidiary is the Paying Agent, shall segregate and hold in trust) money sufficient to pay the redemption price of and accrued
interest on all Securities to be redeemed on that date other than Securities or portions of Securities called for redemption which
have been delivered by the Company to the Trustee for cancellation.
SECTION 3.06.
Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the Company shall execute and
the Trustee shall authenticate for the Holder (at the Company’s expense) a new Security equal in principal amount to the
unredeemed portion of the Security surrendered.
Article
4
Covenants
SECTION 4.01.
Payment of Securities.
The Company shall promptly pay the principal of and interest on the Securities on the dates
and in the manner provided in the Securities and in this Indenture. Principal and interest shall be considered paid on the date
due if on such date the Trustee or the Paying Agent holds in accordance with this Indenture money sufficient to pay all principal
and interest then due.
The Company
shall pay interest on overdue principal at the rate specified therefor in the Securities, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
SECTION 4.02.
SEC Reports.
Whether or not Holdings is subject to the reporting requirements of Section 13 or 15(d) of the
Exchange Act, Holdings shall file with the SEC subject to the next sentence and provide the Trustee and Securityholders (or cause
the Trustee to provide the Securityholders) with such annual and other reports as are specified in Sections 13 and 15(d)
of the Exchange Act and applicable to a U.S. corporation subject to such Sections, such reports to be so filed and provided at
the times specified for the filings of such reports under such Sections (after giving effect to all applicable extensions and
cure periods) and prepared in all material respects in accordance with the rules of regulations applicable to such reports.
If, at any
time, Holdings is not subject to the periodic reporting requirements of the Exchange Act for any reason, Holdings shall nevertheless
continue filing the reports specified in the preceding sentence with the SEC within the time periods specified above unless the
SEC shall not accept such a filing. Holdings shall not take any action for the purpose of causing the SEC not to accept such filings.
If, notwithstanding the foregoing, the SEC shall not accept such filings for any reason, Holdings shall post the reports specified
in the preceding sentence on its website within the time periods that would apply if Holdings were required to file those reports
with the SEC.
At any time
that any of Holdings’ Subsidiaries are Unrestricted Subsidiaries, then the quarterly and annual financial information required
by the preceding paragraph shall include a reasonably detailed presentation, either on the face of the financial statements or
in the footnotes thereto, and in “Management’s Discussion and
Analysis
of Financial Condition and Results of Operations”, of the financial condition and results of operations of Holdings, the
Company and the Restricted Subsidiaries separate from the financial condition and results of operations of such Unrestricted Subsidiaries.
In addition,
at any time when Holdings is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, Holdings
shall furnish to the Holders of the Securities and to prospective investors, upon the requests of such Holders, any information
required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act so long as the Securities are not freely transferable
under the Securities Act. The Company shall also comply with the other provisions of TIA § 314(a).
SECTION 4.03.
Limitation on Indebtedness.
(a) Holdings shall not, and shall not permit the Company or any Restricted
Subsidiary to, Incur, directly or indirectly, any Indebtedness;
provided
,
however
, that Holdings, the Company and
the Restricted Subsidiaries shall be entitled to Incur Indebtedness if, on the date of such Incurrence and after giving effect
thereto on a
pro forma
basis (including a
pro forma
application of the net proceeds therefrom), the Consolidated
Coverage Ratio exceeds 2.0 to 1.0 (any such Indebtedness Incurred pursuant to this clause (a) being herein referred to as
“
Coverage Indebtedness
”);
provided further
, that the amount of Indebtedness that may be Incurred pursuant
to the foregoing by Restricted Subsidiaries that are not Guarantors shall not exceed $300,000,000 at any one time outstanding.
(b)
Notwithstanding the foregoing paragraph (a), Holdings, the Company and the Restricted Subsidiaries shall be entitled
to Incur any or all of the following Indebtedness (any such Indebtedness Incurred pursuant to this clause (b) being herein
referred to as “
Permitted Indebtedness
”):
(1)
Indebtedness Incurred by Holdings, the Company and any Restricted Subsidiary pursuant to any Credit Facility;
provided
,
however
, that, after giving effect to any such Incurrence, the aggregate principal amount of all Indebtedness Incurred
under this clause (1) and then outstanding does not exceed the greater of (i) $1,000,000,000 and (ii) the sum of
$500,000,000 and 25% of Consolidated Net Tangible Assets of Holdings, the Company and the Restricted Subsidiaries determined on
the date of such Incurrence;
provided further
, that the amount of Indebtedness that may be Incurred pursuant to the foregoing
by Restricted Subsidiaries that are not Guarantors shall not exceed $150,000,000 at any one time outstanding under this clause (1);
(2)
Indebtedness owed to and held by Holdings, the Company or a Restricted Subsidiary;
provided
,
however
, that
(A) any subsequent issuance or transfer of any Capital Stock which results in any such Restricted Subsidiary ceasing to be
a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to Holdings, the Company or a Restricted Subsidiary)
shall be deemed, in each case, to constitute the Incurrence of such Indebtedness by the obligor thereon, (B) if the Company
is the obligor on such Indebtedness, such Indebtedness shall be expressly subordinated to the prior payment in full of
all
obligations with respect to the Securities and (C) if a Guarantor is the obligor on such Indebtedness, such Indebtedness
shall be expressly subordinated to the prior payment in full of all obligations of such Guarantor with respect to its Guarantee;
(3)
the Securities (other than any Additional Securities);
(4)
Indebtedness outstanding on the Issue Date (other than Indebtedness described in clause (1), (2) or (3) of this Section 4.03(b));
(5)
Indebtedness of a Restricted Subsidiary Incurred and outstanding on or prior to the date on which such Restricted Subsidiary
was acquired by Holdings (other than Indebtedness Incurred in connection with, or to provide all or any portion of the funds or
credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Subsidiary became
a Subsidiary or was acquired by Holdings);
provided
,
however
, that on the date of such acquisition and after giving
pro forma
effect thereto, Holdings would have been entitled to Incur at least $1.00 of Coverage Indebtedness pursuant to
Section 4.03(a);
(6)
Refinancing Indebtedness in respect of any Coverage Indebtedness or any Permitted Indebtedness Incurred pursuant to clauses
(3), (4) or (5) of this Section 4.03(b) or this clause (6);
(7)
Hedging Obligations incurred in the ordinary course of business and not for the purpose of speculation;
(8)
Obligations in respect of workers’ compensation claims, public liability insurance, unemployment insurance, property,
casualty or liability insurance, self-insurance obligations, bankers’ acceptances, or customs, completion, advance payment,
performance, bid, performance, appeal and surety bonds, completion guarantees and other similar obligations provided by Holdings,
the Company or any Restricted Subsidiary in the ordinary course of business, including guarantees or obligations with respect
to letters of credit supporting the foregoing;
(9)
Indebtedness arising 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;
provided
,
however
, that such Indebtedness is
extinguished within 10 Business Days of its Incurrence;
(10)
the Guarantee by Holdings, the Company or any Subsidiary Guarantor of Indebtedness of Holdings, the Company or any Subsidiary
Guarantor that was permitted to be Incurred by another provision of this covenant;
provided
,
however
, that if the
Indebtedness being guaranteed is subordinated to or
pari passu
with the Securities, then the Guarantee thereof Incurred
pursuant to this clause (10) shall be subordinated or
pari passu
, as applicable, to the same extent as the Indebtedness
being Guaranteed;
(11)
Purchase Money Indebtedness (i) Incurred to finance the acquisition, construction,
development, design, installation or improvement by Holdings, the Company or a Restricted Subsidiary of assets or (ii) assumed
in connection with the acquisition of any fixed or capital assets, and any Refinancing Indebtedness Incurred to Refinance such
Indebtedness, in an aggregate principal amount which, when added together with the amount of Indebtedness Incurred pursuant to
this clause (11) and then outstanding, does not exceed the greater of (A) $100,000,000 and (B) 6.5% of Consolidated
Net Tangible Assets of Holdings, the Company and the Restricted Subsidiaries determined as of the date of such Incurrence;
(12) Indebtedness
Incurred by Holdings, the Company or any Restricted Subsidiary in an aggregate principal amount which, when taken together with
all other Indebtedness of Holdings, the Company and the Restricted Subsidiaries outstanding on the date of such Incurrence and
incurred pursuant to this clause (12) does not exceed the greater of (A) $65,000,000 and (B) 4% of the Consolidated
Net Tangible Assets of Holdings, the Company and the Restricted Subsidiaries determined at the date of such Incurrence;
(13) Indebtedness
Incurred by Foreign Subsidiaries of Holdings in an aggregate principal amount at any time outstanding pursuant to this clause (13)
not to exceed the greater of (A) $100,000,000 and (B) 6.5% of Consolidated Net Tangible Assets of the Foreign Subsidiaries
determined as of the date of such Incurrence;
(14) Attributable
Debt of Holdings, the Company or any Restricted Subsidiary Incurred in connection with any Sale/Leaseback Transaction which, when
taken together with all other Attributable Debt of Holdings, the Company and the Restricted Subsidiaries outstanding on the date
of such Incurrence and incurred pursuant to this clause (14), does not exceed the greater of (A) $30,000,000 and (B) 1.5%
of Consolidated Net Tangible Assets of Holdings, the Company and the Restricted Subsidiaries determined at the date of such Incurrence;
(15) any
obligation arising from agreements of Holdings, the Company or any Restricted Subsidiary providing for indemnification, adjustment
of purchase price, earn outs, or similar obligations, in each case, incurred or assumed in connection with the sale, disposition
or acquisition of any business, assets, Indebtedness or Capital Stock of Holdings, the Company or a Restricted Subsidiary in a
transaction not prohibited by this Indenture;
(16) Indebtedness
of Holdings, the Company or any Restricted Subsidiary consisting of (A) the financing of insurance premiums or (B) take-or-pay
obligations contained in ordinary course supply arrangements;
(17) Indebtedness
of Holdings, the Company or any Restricted Subsidiary in respect of any agreement or other arrangement governing the
provision
of treasury or cash management services, including deposit accounts, overdraft, credit or debit card, funds transfer, automated
clearinghouse, zero balance accounts, returned check concentration, controlled disbursement, lockbox, account reconciliation and
reporting and trade finance services and other cash management services;
(18) Indebtedness
due to any landlord in connection with the financing by such landlord of leasehold improvements; and
(19) Indebtedness
consisting of obligations under deferred compensation arrangements, non-competition agreements or similar arrangements.
(c)
Notwithstanding the foregoing, neither Holdings, the Company nor any Subsidiary Guarantor may Incur any Indebtedness pursuant
to Section 4.03(b) if the proceeds thereof are used, directly or indirectly, to Refinance any Subordinated Obligations of Holdings,
the Company or any Subsidiary Guarantor unless such Indebtedness shall be subordinated to the Securities or the applicable Guarantee
to at least the same extent as such Subordinated Obligations.
(d)
For purposes of determining compliance with this Section 4.03, (1) in the event that an item of Indebtedness
(or any portion thereof) meets the criteria of more than one of the types of Indebtedness described above, Holdings, in its sole
discretion, shall classify such item of Indebtedness (or any portion thereof) at the time of Incurrence and shall only be required
to include the amount and type of such Indebtedness in one of the clauses of paragraph (b) above, (2) Holdings shall be entitled
to divide and classify an item of Indebtedness in more than one of the types of Indebtedness described in the clauses of paragraph
(b) above and, in that connection, Holdings shall be entitled to treat a portion of such Indebtedness as Coverage Indebtedness
and the balance of such Indebtedness as an item or items of Permitted Indebtedness, (3) any Permitted Indebtedness originally
classified as Incurred pursuant to one of the clauses in paragraph (b) above (other than pursuant to clause (1) of paragraph
(b) above) may later be reclassified by Holdings in whole or in part such that it shall be deemed as having been Incurred as Coverage
Indebtedness pursuant to paragraph (a) above or as Permitted Indebtedness pursuant to another clause in paragraph (b)
above, as applicable, to the extent that such reclassified Indebtedness could be Incurred pursuant thereto at the time of such
reclassification, (4) the accrual of interest or Preferred Stock dividends, the accretion or amortization of original issue discount,
the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, the reclassification of
Preferred Stock as Indebtedness due to a change in accounting principles, and the payment of dividends on Preferred Stock or Disqualified
Stock in the form of additional shares of the same class of Preferred Stock or Disqualified Stock shall not be deemed to be an
Incurrence of Indebtedness or an issuance of Preferred Stock or Disqualified Stock and (5) the reclassification of any lease or
other liability of Holdings, the Company or any of the Restricted Subsidiaries as Indebtedness due to a change in accounting principles
after the Issue Date shall not be deemed to be an Incurrence of Indebtedness.
(e)
For purposes of determining compliance with any U.S. dollar denominated restriction on the Incurrence of Indebtedness where
the Indebtedness Incurred is denominated in a different currency, the amount of such Indebtedness shall be the U.S. Dollar Equivalent
determined on the date of the Incurrence of such Indebtedness;
provided
,
however
, that if any such Indebtedness
denominated in a different currency is subject to a Currency Agreement with respect to U.S. dollars covering all principal, premium,
if any, and interest payable on such Indebtedness, the amount of such Indebtedness expressed in U.S. dollars shall be as provided
in such Currency Agreement. The principal amount of any Refinancing Indebtedness Incurred in the same currency as the Indebtedness
being Refinanced shall be the U.S. Dollar Equivalent of the Indebtedness Refinanced, except to the extent that (1) such U.S.
Dollar Equivalent was determined based on a Currency Agreement, in which case the Refinancing Indebtedness shall be determined
in accordance with the preceding sentence, and (2) the principal amount of the Refinancing Indebtedness exceeds the principal
amount of the Indebtedness being Refinanced, in which case the U.S. Dollar Equivalent of such excess shall be determined on the
date such Refinancing Indebtedness is Incurred. Notwithstanding any other provision of this Section 4.03, the maximum amount of
Indebtedness that Holdings, the Company or any of the Restricted Subsidiaries may incur pursuant to this Section 4.03 shall not
be deemed to be exceeded solely as a result of fluctuations in exchange rates or currency values.
SECTION 4.04.
Limitation on Restricted Payments.
(a) Holdings shall not, and shall not permit the Company or any Restricted
Subsidiary, directly or indirectly, to make a Restricted Payment if at the time such Restricted Payment is made:
(1)
a Default shall have occurred and be continuing (or would result therefrom);
(2)
Holdings is not entitled to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a); or
(3)
the aggregate amount of such Restricted Payment and all other Restricted Payments since the Issue Date would exceed the
sum of (without duplication):
(A)
50% of the Consolidated Net Income accrued during the period (treated as one accounting period) from the beginning of the
fiscal quarter during which the Issue Date occurred to the end of the most recent fiscal quarter ending prior to the date of such
Restricted Payment for which consolidated financial statements of Holdings are available (or, in case such Consolidated Net Income
shall be a deficit,
minus
100% of such deficit);
plus
(B)
100% of the aggregate Net Cash Proceeds or Fair Market Value of any asset (other than cash) received by Holdings either
(x) from the issuance or sale of its Qualified Capital Stock subsequent to the Issue Date or (y) as a contribution in
respect of its Qualified Capital Stock from
its shareholders subsequent to the Issue Date, but excluding in each case any Net
Cash Proceeds that are used to redeem Securities in accordance with the third paragraph under Section 5 of the Securities;
plus
(C)
the amount by which the principal amount of consolidated Indebtedness of Holdings (other than Indebtedness owing to a Subsidiary)
is reduced upon the conversion or exchange subsequent to the Issue Date of any consolidated Indebtedness of Holdings convertible
or exchangeable for Qualified Capital Stock of Holdings (less the amount of any cash, or the fair value of any other property,
distributed by Holdings upon such conversion or exchange);
provided
,
however
, that the foregoing amount shall not
exceed the Net Cash Proceeds received by Holdings, the Company or any Restricted Subsidiary from the sale of such Indebtedness
(excluding Net Cash Proceeds from sales to a Subsidiary of Holdings or to an employee stock ownership plan or a trust established
by Holdings or any of its Subsidiaries for the benefit of their employees);
plus
(D)
except as included in clause (E) below, an amount equal to the sum of (x) the aggregate amount of cash and the
Fair Market Value of any asset other than cash received by Holdings, the Company or any Restricted Subsidiary subsequent to the
Issue Date with respect to Investments (other than Permitted Investments) made by Holdings, the Company or any Restricted Subsidiary
in any Person (other than Holdings, the Company or any Restricted Subsidiary) and resulting from repurchases, repayments or redemptions
of such Investments by such Person, and any proceeds realized on the sale of any such Investment, and (y) in the event that
Holdings redesignates an Unrestricted Subsidiary to be a Restricted Subsidiary, the portion (proportionate to Holdings’
equity interest in such Subsidiary) of the Fair Market Value of the net assets of such Unrestricted Subsidiary at the time such
Unrestricted Subsidiary is designated a Restricted Subsidiary (other than to the extent Holdings’ Investment in such Unrestricted
Subsidiary constituted a Permitted Investment);
provided
,
however
, that the foregoing sum shall not exceed, in the
case of any such Person or Unrestricted Subsidiary, the amount of Investments (excluding Permitted Investments) previously made
(and treated as a Restricted Payment) by Holdings, the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary;
plus
(E)
50% of (x) any dividends received in cash by Holdings, the Company or a Restricted Subsidiary after the Issue Date
from an Unrestricted Subsidiary or (y) the net proceeds from the sale or other disposition of the Capital Stock of an Unrestricted
Subsidiary received in cash by Holdings, the Company or a Restricted Subsidiary after the Issue Date, in each case, to the extent
that such dividends or proceeds were not otherwise included in Consolidated Net Income for such period.
(b)
The provisions of Section 4.04(a) shall not prohibit:
(1)
any Restricted Payment made out of the Net Cash Proceeds of the substantially concurrent sale of, or made by exchange for,
Qualified Capital Stock of Holdings or a substantially concurrent cash capital contribution received by Holdings from its shareholders
with respect to its Qualified Capital Stock, with a sale, exchange or contribution being deemed substantially concurrent if such
Restricted Payment occurs not more than 120 days after such sale, exchange or contribution;
provided
,
however
,
that (A) such Restricted Payment shall be excluded in the calculation of the amount of Restricted Payments and (B) the
Net Cash Proceeds from such sale or such cash capital contribution (to the extent so used for such Restricted Payment) shall be
excluded from the calculation of amounts under Section 4.04(a)(3)(B);
(2)
any purchase, repurchase, redemption, defeasance or other acquisition or retirement for value of Subordinated Obligations
of Holdings, the Company or any Subsidiary Guarantor made by exchange for, or out of the proceeds of the substantially concurrent
Incurrence of, Indebtedness of such Person which is permitted to be Incurred pursuant to Section 4.03, with an Incurrence being
deemed substantially concurrent if such purchase, repurchase, redemption, defeasance or other acquisition or retirement for value
occurs not more than 120 days after such Incurrence;
provided
,
however
, that such purchase, repurchase, redemption,
defeasance or other acquisition or retirement for value shall be excluded in the calculation of the amount of Restricted Payments;
(3)
the payment of any dividend, distribution or redemption of any Capital Stock or Subordinated Indebtedness within sixty
(60) days after the date of declaration thereof or call for redemption if, at such date of declaration or call for redemption,
such payment or redemption was permitted by the provisions of Section 4.04(a) (the declaration of such payment shall be deemed
a Restricted Payment under Section 4.04(a) as of the date of declaration and the payment itself shall be deemed to have been paid
on such date of declaration and shall not also be deemed a Restricted Payment under Section 4.04(a));
provided
,
however
,
that any Restricted Payment made in reliance on this clause (3) shall reduce the amount available for Restricted Payments
pursuant to Section 4.04(a)(3) only once;
(4)
the purchase, redemption or other acquisition or retirement for value of shares of Capital Stock of Holdings or any of
its Subsidiaries from officers, former officers, employees, former employees, directors or former directors of Holdings or any
of its Subsidiaries (or permitted transferees of such officers, former officers, employees, former employees, directors or former
directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) under which
such individuals purchase or sell or are granted the option to purchase or sell, shares of such Capital Stock;
provided
,
however
, that the aggregate amount of such Restricted Payments (excluding amounts representing cancelation of Indebtedness)
shall not exceed $10,000,000 in any calendar year, with any portion of such $10,000,000 amount that is unused in any calendar
year to be carried forward to the next
successive calendar year and added to such amount for that successive year,
plus
,
to the extent not previously applied or included, the Net Cash Proceeds received by Holdings from sales of Qualified Capital Stock
of Holdings to employees or directors of Holdings or any of its Subsidiaries (to the extent such Net Cash Proceeds have not otherwise
been applied to the payment of Restricted Payments by virtue of Section 4.04(a)(3));
provided further
,
however
,
that such Restricted Payments shall be excluded in the calculation of the amount of Restricted Payments;
(5)
the declaration and payments of dividends on Disqualified Stock or any Preferred Stock of any Restricted Subsidiary issued
pursuant to Section 4.03;
provided
,
however
, that, at the time of payment of such dividend, no Default shall have
occurred and be continuing (or result therefrom);
provided further
,
however
, that such dividends shall be excluded
in the calculation of the amount of Restricted Payments;
(6)
repurchases, redemptions or other acquisitions or retirement for value of Capital Stock (a) deemed to occur upon exercise,
conversion or exchange of stock options, warrants or other rights to acquire Capital Stock, if such Capital Stock represents a
portion of the exercise price of such options, warrants or other rights or (b) made in lieu of withholding taxes in connection
with any such exercise, conversion or exchange;
provided
,
however
, that such Restricted Payments shall be excluded
in the calculation of the amount of Restricted Payments;
(7)
cash payments in lieu of the issuance of fractional shares in connection with the exercise, conversion or exchange of warrants,
options or other securities convertible into or exchangeable for Capital Stock of Holdings;
provided
,
however
, that
such payments shall be excluded in the calculation of the amount of Restricted Payments;
(8)
if no Default shall have occurred and be continuing, the payment, purchase, redemption, defeasance or other acquisition
or retirement of Subordinated Obligations of Holdings, the Company or any Subsidiary Guarantor, in each case, (a) in the
event of a Change of Control, at a purchase price not greater than 101% of the principal amount of such Subordinated Obligations
or (b) in the event of an Asset Sale, at a purchase price not greater than 100% of the principal amount of such Subordinated
Obligations, plus, in either case, any accrued and unpaid interest thereon;
provided
,
however
, that prior to such
payment, purchase, redemption, defeasance or other acquisition or retirement, the Company (or a third party to the extent permitted
by this Indenture) has made a Change of Control Offer or an Asset Sale Offer, as applicable, with respect to the Securities as
a result of such Change of Control or Asset Sale, and has repurchased all Securities validly tendered and not withdrawn in connection
with such Change of Control Offer or Asset Sale Offer;
provided further
,
however
, that such payments, purchases,
redemptions, defeasances or other acquisitions or
retirements shall be included in the calculation of the amount of Restricted
Payments;
(9)
payments of intercompany subordinated Permitted Indebtedness the Incurrence of which was permitted under Section 4.03(b)(2);
provided
,
however
, that no Event of Default has occurred and is continuing or would otherwise result therefrom;
provided further
,
however
, that such payments shall be excluded in the calculation of the amount of Restricted Payments;
(10)
so long as no Default or Event of Default has occurred and is continuing or shall result therefrom, other Restricted Payments
in an aggregate amount not to exceed the greater of (i) $75,000,000 and (ii) 4% of Consolidated Net Tangible Assets of Holdings,
the Company and the Restricted Subsidiaries determined as of the date of such Restricted Payment,
provided
,
however
,
that such payments shall be included in the calculation of the amount of Restricted Payments;
(11)
dividends or distributions in an aggregate amount per annum not to exceed 6% of the net cash proceeds received by or contributed
to the capital of Holdings in connection with any Qualified Equity Offering following the Issue Date,
provided
,
however
,
that such payments shall be included in the calculation of the amount of Restricted Payments;
(12)
so long as no Default or Event of Default has occurred and is continuing or shall result therefrom, other Restricted Payments
if, immediately after giving effect to such Restricted Payment (including the Incurrence of any Indebtedness to finance such payment)
as if it had occurred at the beginning of the most recently ended four (4) full consecutive fiscal quarters for which internal
consolidated financial statements of Holdings are available, the Consolidated Leverage Ratio would not be greater than 3.0 to
1.0,
provided
,
however
, that such payments shall be included in the calculation of the amount of Restricted Payments;
and
(13)
transactions pursuant to the Spin-Off Documents or any amendment, modification or supplement thereto or replacement thereof,
as long as the terms of such agreement or arrangement, as so amended, modified, supplemented or replaced is not materially more
disadvantageous to Holdings, the Company and the Restricted Subsidiaries, taken as a whole, than the terms of such agreement or
arrangement prior to such amendment, modification, supplement or replacement,
provided
,
however
, that such payments
shall be excluded in the calculation of the amount of Restricted Payments.
For purposes
of determining compliance with this Section 4.04, if a Restricted Payment meets the criteria of more than one of the categories
of Restricted Payments described in the clauses (1) through (10) and (13) of Section 4.04(b), the Company shall be permitted
to divided or classify (or later divide, classify or reclassify in
whole
or in part in its sole discretion) such Restricted Payment in any manner that complies with this Section 4.04.
SECTION 4.05.
Limitation on Restrictions on Distributions from Restricted Subsidiaries.
The Company shall not, and Holdings shall
not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance
or restriction on the ability of any Restricted Subsidiary to (a) pay dividends or make any other distributions on its Capital
Stock to the Company or a Restricted Subsidiary or pay any Indebtedness owed to the Company or any Restricted Subsidiary, (b) make
any loans or advances to the Company or any Restricted Subsidiary or (c) transfer any of its property or assets to the Company
or any Restricted Subsidiary, except:
(1)
with respect to clauses (a), (b) and (c),
(A)
any encumbrance or restriction pursuant to an agreement in effect at or entered into on or prior to the Issue Date, including
the Senior Credit Agreement;
(B)
any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Indebtedness
Incurred by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by Holdings (other
than Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate,
the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary
or was acquired by Holdings) and outstanding on such date;
(C)
any encumbrance or restriction pursuant to an agreement effecting a Refinancing of Indebtedness Incurred pursuant to an
agreement referred to in Section 4.05(1)(A) or (B) or this clause (C) or contained in any amendment to an agreement
referred to in Section 4.05(1)(A) or (B) or this clause (C);
provided
,
however
, that the encumbrances
and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or amendment are not materially
less favorable, taken as a whole, to the Company (as determined by the Board of Directors in its reasonable and good faith judgment)
than encumbrances and restrictions with respect to such Restricted Subsidiary contained in such predecessor agreements;
(D)
any encumbrance or restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for
the sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary pending the closing
of such sale or disposition;
(E)
any encumbrance or restriction pursuant to an agreement or instrument relating to any property or assets acquired after
the Issue Date, so long as such encumbrance or restriction relates only to the property or assets so acquired and is not created
in anticipation of such acquisition;
(F)
any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(G)
restrictions on cash, cash equivalents, Temporary Cash Investments or other deposits or net worth imposed under contracts
entered into the ordinary course of business, including such restrictions imposed by customers, suppliers, landlords or insurance,
surety or bonding companies;
(H)
any encumbrance or restriction with respect to a Foreign Subsidiary entered into in the ordinary course of business or
pursuant to the terms of Indebtedness that was Incurred by such Foreign Subsidiary in compliance with the terms of this Indenture;
(I)
provisions contained in any license, permit or other accreditation with a regulatory authority entered into the ordinary
course of business;
(J)
provisions in agreements or instruments which prohibits the payment or making of dividends or other distributions other
than on a
pro rata
basis;
(K)
customary provisions in organizational documents, joint venture agreements and other similar agreements (in each case relating
solely to the respective joint venture or similar entity or the equity interests therein) entered into (i) in the ordinary
course of business or (ii) with the approval of the Board of Directors; and
(L)
any encumbrance or restrictions existing under or by reason of any agreements governing other Indebtedness permitted to
be incurred under Section 4.03 and any amendments, restatements, modifications, renewals, supplements, refundings, replacements
or refinancings of those agreements;
provided
that the restrictions therein are not materially more restrictive, taken
as a whole, than those permitted in (y) this Indenture, the Securities and the Guarantees or (z) agreements governing
Indebtedness outstanding on the Issue Date, in each case as determined by the Company in its reasonable and good faith judgment.
(2)
with respect to clause (c) only,
(A)
any encumbrance or restriction consisting of customary nonassignment provisions in leases governing leasehold interests
to the
extent such provisions restrict the transfer of the lease or the property leased thereunder; and
(B)
any encumbrance or restriction contained in security agreements or mortgages securing Indebtedness of a Restricted Subsidiary
to the extent such encumbrance or restriction restricts the transfer of the property subject to such security agreements or mortgages.
SECTION 4.06.
Limitation on Sales of Assets and Subsidiary Stock.
(a) Holdings shall not, and shall not permit the
Company or any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless (1) Holdings, the
Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the Fair
Market Value (including as to the value of all non-cash consideration) of the shares and assets subject to such Asset Disposition;
(2) at least 75% of the consideration thereof received by Holdings, the Company or such Restricted Subsidiary is in the form of
cash or Temporary Cash Investments; and (3) an amount equal to 100% of the Net Available Cash from such Asset Disposition
is applied by Holdings (or the Company or such Restricted Subsidiary, as the case may be) (A)
first
, to the extent
Holdings elects, within 365 days of the receipt of such Net Available Cash, (i) to reduce the outstanding principal amount
of Permitted Indebtedness Incurred pursuant to Section 4.03(b)(1); (ii) to reduce the outstanding principal amount of any other
Senior Indebtedness of Holdings, the Company or any Subsidiary Guarantor;
provided
,
however
, that the Company shall
equally and ratably reduce the principal amount of Securities outstanding, through open-market purchases (to the extent such purchases
are at or above 100% of the principal amount thereof) or through redemption, or shall offer (in accordance with the procedures
set forth below in Section 4.06(b)) to all Holders to purchase their Securities at 100% of the principal amount thereof, plus
accrued but unpaid interest, if any, in an aggregate principal amount which, if the offer were accepted, would result in such
reduction; or (iii) to reduce Indebtedness of a Restricted Subsidiary that is not a Guarantor; in each case other than Indebtedness
owed to Holdings or an Affiliate of Holdings; (B)
second
, to the extent of the balance of such Net Available Cash
after application in accordance with clause (A), to the extent Holdings elects, to acquire Additional Assets or make any
other capital expenditures in respect of a Related Business within 365 days of the receipt of such Net Available Cash; and
(C)
third
, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A)
and (B), to make an offer to the Holders of the Securities (and to holders of other Senior Indebtedness of the Company designated
by the Company) to purchase Securities (and such other Senior Indebtedness of the Company) pursuant to and subject to the conditions
contained in this Indenture;
provided
,
however
, that in connection with any prepayment, repayment or purchase of
Indebtedness pursuant to clause (A) or (C) above, Holdings, the Company or such Restricted Subsidiary shall cause the related
loan commitment (if any) to be reduced in an amount equal to the principal amount so prepaid, repaid or purchased.
The requirement
of Section 4.06(a)(3)(B) shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition
or expenditure referred to therein is entered into by Holdings, the Company or any of its
Restricted
Subsidiaries within the time period specified in Section 4.06(a)(3)(A) and such Net Available Cash is subsequently applied in
accordance with such contract within 180 days following the date such agreement is entered into.
Notwithstanding
the foregoing provisions of this Section 4.06, Holdings, the Company and the Restricted Subsidiaries shall not be required
to apply any Net Available Cash in accordance with this Section 4.06 except to the extent that the aggregate Net Available Cash
from all Asset Dispositions which is not applied in accordance with this Section 4.06 exceeds $20,000,000. Pending application
of Net Available Cash pursuant to this Section 4.06, such Net Available Cash shall be invested in Temporary Cash Investments or
applied to temporarily reduce revolving credit Indebtedness.
For the purposes
of Section 4.06(a)(2), the following are deemed to be cash or Temporary Cash Investments: (i) the assumption or discharge
of Indebtedness of Holdings (other than obligations in respect of Disqualified Stock of Holdings), the Company or any Restricted
Subsidiary (other than obligations in respect of Disqualified Stock or Preferred Stock of the Company or a Restricted Subsidiary
that is a Subsidiary Guarantor) and the release of Holdings, the Company or such Restricted Subsidiary from all liability on such
Indebtedness in connection with such Asset Disposition; (ii) any securities received by Holdings, the Company or any Restricted
Subsidiary from the transferee that are converted by Holdings, the Company or such Restricted Subsidiary into cash within ninety
(90) days after such Asset Disposition, to the extent of the cash received in that conversion; and (iii) any Designated Non-cash
Consideration received by Holdings, the Company or any Restricted Subsidiary in such Asset Disposition having an aggregate Fair
Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (3) that is
at that time outstanding, not to exceed the greater of (1) $65,000,000 and (2) 4% of Consolidated Net Tangible Assets
of Holdings, the Company and the Restricted Subsidiaries at the time of the receipt of such Designated Non-cash Consideration
(with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without
giving effect to subsequent changes in value).
(b)
In the event of an Asset Disposition that requires the purchase of Securities (and other Senior Indebtedness) pursuant
to Section 4.06(a)(3)(C) (or following which, the Company elects to purchase the Securities pursuant Section 4.06(a)(3)(A)(ii)
above), the Company shall purchase Securities tendered pursuant to an offer (an “
Asset Sale Offer
”) by the
Company for the Securities (and such other Senior Indebtedness) at a purchase price of 100% of their principal amount without
premium, plus accrued but unpaid interest in accordance with the procedures (including prorating in the event of oversubscription)
set forth in this Indenture. If the aggregate purchase price of the securities tendered exceeds the Net Available Cash allotted
to their purchase, the Company shall select the securities to be purchased on a
pro rata
basis but in round denominations,
which in the case of the Securities shall be minimum denominations of $2,000 principal amount or any greater integral multiple
of $1,000 thereof. The Company shall not be required to make such an Asset Sale Offer pursuant to this Section 4.06 if the Net
Available Cash available therefor is less than $50,000,000 (which lesser
amount
shall be carried forward for purposes of determining whether such an Asset Sale Offer is required with respect to the Net Available
Cash from any subsequent Asset Disposition). Upon completion of such an Asset Sale Offer, Net Available Cash shall be reset at
zero.
(c)
(1) Promptly, and in any event within 10 days after the Company becomes obligated to make an Asset
Sale Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that
the Holder may elect to have his Securities purchased by the Company either in whole or in part (subject to prorating as described
in Section 4.06(b) in the event the Asset Sale Offer is oversubscribed) in denominations of $2,000 of principal amount or any
greater integral multiple of $1,000 thereof, at the applicable purchase price. The notice shall specify a purchase date not less
than 30 days nor more than 60 days after the date of such notice (the “
Purchase Date
”) and shall contain such
information concerning the business of the Company which the Company in good faith believes shall enable such Holders to make
an informed decision.
(2)
Not later than the date upon which written notice of an Asset Sale Offer is delivered to the Trustee as provided below,
the Company shall deliver to the Trustee an Officer’s Certificate as to (A) the amount of the Asset Sale Offer (the
“
Asset Sale Offer Amount
”), including information as to any other Senior Indebtedness included in the Asset
Sale Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Asset Sale Offer
is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date,
the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the
Purchase Date if funds are immediately available by open of business, an amount equal to the Asset Sale Offer Amount to be held
for payment in accordance with the provisions of this Section. If the Asset Sale Offer includes other Senior Indebtedness, the
deposit described in the preceding sentence may be made with any other paying agent pursuant to arrangements satisfactory to the
Trustee. Upon the expiration of the period for which the Asset Sale Offer remains open (the “
Asset Sale Offer Period
”),
the Company shall deliver to the Trustee for cancellation the Securities or portions thereof which have been properly tendered
to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery
of payment) to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the
Securities delivered by the Company to the Trustee is less than the Asset Sale Offer Amount applicable to the Securities, the
Trustee shall deliver the excess to the Company immediately after the expiration of the Asset Sale Offer Period for application
in accordance with this Section 4.06.
(3)
Holders electing to have a Security purchased shall be required to surrender the Security, with an appropriate form duly
completed, to the Company
at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders
shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the
Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security
which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security
purchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the
unpurchased portion of the Securities surrendered.
(4)
At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also
deliver an Officer’s Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance
with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly
or through an agent, mails or delivers payment therefor to the surrendering Holder.
(d)
The Company shall comply, to the extent applicable, with the requirements of Rule 14e-1 of the Exchange Act and any
other securities laws or regulations in connection with the repurchase of Securities pursuant to this Section 4.06. To the extent
that the provisions of any securities laws or regulations conflict with provisions of this Section 4.06, the Company shall comply
with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section
4.06 by virtue of its compliance with such securities laws or regulations.
SECTION 4.07.
Limitation on Affiliate Transactions.
(a) Holdings shall not, and shall not permit the Company or any
Restricted Subsidiary to, enter into or permit to exist any transaction (including the purchase, sale, lease or exchange of any
property, employee compensation arrangements or the rendering of any service) with, or for the benefit of, any Affiliate of Holdings,
the Company or any Restricted Subsidiary (an “
Affiliate Transaction
”) involving aggregate payments or consideration
in excess of $7,500,000, unless (1) the terms of the Affiliate Transaction, taken as a whole, are no less favorable to Holdings,
the Company or such Restricted Subsidiary than those that could reasonably be expected to have been obtained at the time of the
Affiliate Transaction in comparable arm’s-length dealings with a Person who is not an Affiliate; and (2) Holdings delivers
to the Trustee (A) if such Affiliate Transaction involves an amount in excess of $25,000,000 but not greater than $50,000,000,
an Officer’s Certificate certifying that such Affiliate Transaction or series of Affiliate Transactions complies with this
Section 4.07 and (B) if such Affiliate Transaction involves an amount in excess of $50,000,000, a resolution of the Board of Directors
of Holdings set forth in an Officer’s Certificate certifying that such Affiliate Transaction or series of related Affiliate
Transactions complies with this Section 4.07 and that such Affiliate Transaction or series of related Affiliate Transactions has
been approved by a majority of the disinterested members of the Board of Directors, if any. For purposes of Section 4.07(a)(2)(B),
any Affiliate Transaction shall be deemed to have satisfied the requirements thereof if (x) such Affiliate Transaction is
approved by a majority of the disinterested members of the Board of Directors or (y) in the event there are no disinterested
members, a letter from an
accounting,
appraisal or investment banking firm of national standing is provided stating that such transaction is fair to Holdings, the Company
or such Restricted Subsidiary from a financial point of view or that such Affiliate Transaction meets the requirements of Section
4.07(a)(1).
(b)
The provisions of Section 4.07(a) shall not prohibit (1) (A) any Permitted Investment or (B) any Investment
(other than a Permitted Investment) or other Restricted Payment, in each case permitted to be made pursuant to Section 4.04;
(2) any employment agreement, employee benefit plan, officer or director indemnification agreement or any similar arrangement
entered into by Holdings, the Company or any Restricted Subsidiary in the ordinary course of business, and any issuance of securities,
or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, any such agreement, plan
or arrangement; (3) loans or advances to employees in the ordinary course of business in accordance with the past practices
of Holdings, the Company or any Restricted Subsidiary, but in any event not to exceed $2,500,000 in the aggregate outstanding
at any one time; (4) the payment of reasonable fees, compensation and payments in respect of indemnities to directors, officers,
employees or consultants of Holdings, the Company and the Restricted Subsidiaries; (5) any transaction with Holdings, the
Company, a Restricted Subsidiary or joint venture or similar entity which would constitute an Affiliate Transaction solely because
Holdings, the Company or a Restricted Subsidiary owns an equity interest in or otherwise controls the Company, such Restricted
Subsidiary, joint venture or similar entity; (6) the issuance or sale of any Capital Stock (other than Disqualified Stock) of
Holdings or the issuance or sale of any Capital Stock of the Company or any Restricted Subsidiary (or any Person that thereby
becomes a Restricted Subsidiary) to Holdings, the Company or any Restricted Subsidiary; (7) transactions with customers, clients,
vendors, suppliers or other purchasers or sellers of goods or services, in each case in the ordinary course of business (including
pursuant to joint venture agreements); (8) any transaction on arm’s-length terms with any non-Affiliate that becomes an
Affiliate as a result of such transactions; (9) any transactions between Holdings, the Company or any Restricted Subsidiary, on
one hand, and any Person, on the other hand, a director of which is also a director of Holdings, the Company or a Restricted Subsidiary,
and such director is the sole cause for such Person to be deemed an Affiliate of Holdings, the Company and/or a Restricted Subsidiary;
provided
that such director abstains from voting as a director of Holdings, the Company or the Restricted Subsidiary, as
applicable, in connection with the approval of the transaction; and (10) other agreements or arrangements in effect on the Issue
Date or any amendment, modification or supplement thereto or replacement thereof, as long as such agreement or arrangement, as
so amended, modified, supplemented or replaced is not materially more disadvantageous to Holdings, the Company and the Restricted
Subsidiaries, taken as a whole, than the agreement or arrangement in existence on the Issue Date.
SECTION 4.08.
Change of Control.
(a) Upon the occurrence of a Change of Control, each Holder shall have the right to
require that the Company repurchase such Holder’s Securities at a purchase price in cash equal to 101% of the principal
amount thereof on the date of purchase
plus
accrued and unpaid interest, if any,
to
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):
(b)
Within thirty (30) days following any Change of Control unless the Company has previously or concurrently mailed a
redemption notice with respect to all outstanding Securities as described under Section 5 of the Securities, the Company shall
mail a notice by first-class mail to each Holder with a copy to the Trustee (the “
Change of Control Offer
”)
stating:
(1)
that a Change of Control has occurred and that such Holder has the right to require the Company to purchase such Holder’s
Securities at a purchase price in cash equal to 101% of the principal thereof on the date of purchase,
plus
accrued and
unpaid interest, if any, to the date of purchase (subject to the right of Holders of record on the relevant record date to receive
interest on the relevant interest payment date);
(2)
the circumstances and relevant facts regarding such Change of Control;
(3)
the purchase date (which shall be no earlier than thirty (30) days nor later than sixty (60) days from the date
such notice is mailed); and
(4)
the instructions, as determined by the Company, consistent with this Section 4.08, that a Holder must follow in order to
have its Securities purchased.
(c)
The Company shall not be required to make a Change of Control Offer following a Change of Control if a third party makes
the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture
applicable to a Change of Control Offer made by the Company and purchases all Securities validly tendered and not withdrawn under
such Change of Control Offer.
(d)
Holders electing to have a Security purchased shall be required to surrender the Security, with an appropriate form duly
completed, to the Company at the address specified in the notice at least three Business Days prior to the purchase date. Holders
shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the
purchase date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount
of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to
have such Security purchased.
(e)
On the purchase date, all Securities purchased by the Company under this Section shall be delivered by the Company to the
Trustee for cancellation, and the Company shall pay the purchase price
plus
accrued and unpaid interest, if any, to the
Holders entitled thereto.
(f)
If the terms of the Senior Credit Agreement prohibit the Company from making a Change of Control Offer or from purchasing
the Securities pursuant thereto, prior to the mailing of the notice to Securityholders described in the preceding paragraph, but
in any event within thirty (30) days following any Change of Control, the Company covenants to:
(1) repay in full all
Indebtedness outstanding under the Senior Credit Agreement or offer to repay in full all such Indebtedness and repay the Indebtedness
of each lender who has accepted such offer; or
(2) obtain the requisite
consent under the Senior Credit Agreement to permit the purchase of the Securities as described above.
The Company
must first comply with this Section 4.08(f) before it shall be required to purchase Securities in the event of a Change of Control,
provided
,
however
, that the Company’s failure to comply with this Section 4.08(f) or to make a Change of Control
Offer because of any such failure shall constitute a default described in Section 6.01(5) (and not under Section 6.01(2)).
(g)
A Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a
definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer.
(h)
The Company shall comply, to the extent applicable, with the requirements of Rule 14e-1 under the Exchange Act and
any other securities laws or regulations in connection with the repurchase of Securities as a result of a Change of Control. To
the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section, the Company
shall comply with the applicable securities laws and regulations and shall not be deemed to have breached the Company’s
obligations under this Section by virtue of the Company’s compliance with such securities laws or regulations.
SECTION 4.09.
Limitation on Liens.
Holdings shall not, and shall not permit the Company or any Restricted Subsidiary
to, directly or indirectly, Incur or permit to exist any Lien (the “
Initial Lien
”) of any nature whatsoever
on any of its properties (including Capital Stock of the Company or a Restricted Subsidiary), whether owned at the Issue Date
or thereafter acquired, securing any Indebtedness, other than Permitted Liens, without effectively providing that the Securities
and the Guarantees shall be secured equally and ratably with (or prior to) the obligations so secured for so long as such obligations
are so secured.
Any such Lien
thereby created in favor of the Securities or any Guarantee shall be automatically and unconditionally released and discharged
upon (i) the release and discharge of each Initial Lien to which it relates, (ii) in the case of such Lien in favor
of any Subsidiary Guarantor, upon the termination and discharge of such Subsidiary Guarantee in accordance with the terms of this
Indenture or (iii) any sale, exchange or transfer to any Person not an Affiliate of Holdings of the property or assets secured
by such Initial Lien.
With respect
to any Lien securing Indebtedness that was permitted to secure such Indebtedness at the time of the Incurrence of such Indebtedness,
such Lien shall also be permitted to secure any Increased Amount of such Indebtedness. The “Increased Amount” of any
Indebtedness shall mean any increase in the amount of such Indebtedness in connection with any accrual of interest or fees, any
accretion of accreted value, any amortization of original issue discount, any payment of interest in the form of additional Indebtedness
containing the same terms or in the form of Qualified Capital Stock of Holdings, any payment of dividends on Preferred Stock in
the form of additional shares of Preferred Stock of the same class or any accretion of original issue discount or liquidation
preference and any increase in the amount of Indebtedness outstanding solely as a result of fluctuations in the exchange rate
of currencies or increases in the value of property securing Indebtedness.
SECTION 4.10.
Future Subsidiary Guarantors.
Holdings shall cause each domestic Wholly Owned Subsidiary that Guarantees Indebtedness
under the Senior Credit Agreement to execute and deliver to the Trustee a supplemental indenture pursuant to which such Subsidiary
shall Guarantee payment of the Securities on the same terms and conditions as those set forth in Article 10 of this Indenture
and applicable to the other Subsidiary Guarantors.
SECTION 4.11.
Suspension of Covenants.
(a) Following the first day (the “
Suspension Date
”) that: (a) the Securities
have an Investment Grade Rating from both of the Rating Agencies and (b) no Default has occurred and is continuing under this
Indenture, Holdings, the Company and the Restricted Subsidiaries shall not be subject to Sections 4.03, 4.04, 4.05, 4.06, 4.07,
4.10, 5.01(a)(3) and 5.01(b)(3) (collectively, the “
Suspended Covenants
”) and the then-existing Subsidiary
Guarantees will be suspended as of the Suspension Date.
(b) In
the event that Holdings, the Company and the Restricted Subsidiaries are not subject to the Suspended Covenants for any period
of time as a result of the foregoing, and on any subsequent date (the “
Reversion Date
”) one or both of the
Rating Agencies withdraws its Investment Grade Rating or downgrades the rating assigned to the Securities below an Investment
Grade Rating, then Holdings, the Company and the Restricted Subsidiaries will thereafter again be subject to the Suspended Covenants
with respect to future events and the Subsidiary Guarantees will be reinstated. The period of time between the Suspension Date
and the Reversion Date is referred to in this description as the “
Suspension Period
”. Notwithstanding that
the Suspended Covenants may be reinstated, no Default shall be deemed to have occurred as a result of a failure to comply with
the Suspended Covenants during the Suspension Period.
(c) On
the Reversion Date, all Indebtedness Incurred during the Suspension Period shall be classified to have been Incurred pursuant
to Sections 4.03(a) or 4.03(b) (to the extent such Indebtedness would be permitted to be Incurred thereunder as of the Reversion
Date and after giving effect to Indebtedness Incurred prior to the Suspension Period and outstanding on the Reversion Date). To
the extent such Indebtedness would not be so permitted to be Incurred pursuant to Sections 4.03(a) or
4.03(b),
such Indebtedness shall be deemed to have been outstanding on the Issue Date, so that it is classified as permitted under Section
4.03(b)(4). Calculations made after the Reversion Date of the amount available to be made as Restricted Payments under Section
4.04 shall be made as though Section 4.04 had been in effect since 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 4.04(a) and the provisions specified in Sections 4.04(a)(3)(A)-(E) will increase the amount available to be made
under Section 4.04(a). For purposes of determining compliance with Section 4.06(a), the amount of Net Available Cash from all
Asset Dispositions not applied in accordance with the covenant shall be deemed to be reset to zero.
SECTION 4.12.
Compliance Certificate.
The Company shall deliver to the Trustee, within 120 days after the end of each fiscal year
of the Company, an Officer’s Certificate stating that in the course of the performance by such Officer of his or her duties
he or she would normally have knowledge of any Default and whether or not such Officer knows of any Default that occurred during
such period. If so, the certificate shall describe the Default, its status and what action the Company is taking or proposes to
take with respect thereto. The Company shall also comply with TIA § 314(a)(4).
Article
5
Successor Company
SECTION 5.01.
When Company May Merge or Transfer Assets.
(a) Holdings shall not consolidate with or merge with or into,
or convey, transfer or lease, in one transaction or a series of transactions, directly or indirectly, all or substantially all
its assets to, any Person, unless:
(1)
Holdings shall be the surviving corporation or the resulting, surviving or transferee Person (“
Successor Holdings
”)
shall be a Person organized and existing under the laws of the United States of America, any State thereof or the District of
Columbia and Successor Holdings (if not Holdings) shall expressly assume, by an indenture supplemental thereto, executed and delivered
to the Trustee, in form reasonably satisfactory to the Trustee, all the obligations of Holdings under its Guarantee of the Securities
and this Indenture;
(2)
immediately after giving
pro forma
effect to such transaction (and treating any Indebtedness which becomes an obligation
of Successor Holdings or any Subsidiary as a result of such transaction as having been Incurred by Successor Holdings or such
Subsidiary at the time of such transaction), no Default shall have occurred and be continuing;
(3)
immediately after giving
pro forma
effect to such transaction, Successor Holdings would (a) be able to Incur
an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a) or (b) have had a Consolidated Coverage
Ratio
greater than the Consolidated Coverage Ratio immediately prior to such transaction and without giving
pro forma
effect
thereto; and
(4)
Holdings shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that
such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture.
(b)
The Company shall not consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series
of related transactions, directly or indirectly, all or substantially all of its assets in one or a series of related transactions
to, any Person, unless:
(1)
the surviving corporation or the resulting, surviving or transferee Person (the “
Successor Company
”)
shall be a corporation, limited liability corporation or limited partnership organized and existing under the laws of the United
States of America, any State thereof or the District of Columbia and the Successor Company (if not the Company) shall expressly
assume, by an indenture supplemental thereto, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee,
all the obligations of the Company under the Securities and this Indenture; and if the Successor Company shall be a limited liability
corporation or limited partnership, a Wholly Owned Subsidiary of the Successor Company that is a corporation organized and existing
under the laws of the United States of America, any State thereof or the District of Columbia shall expressly assume, on a joint
and several basis with the Successor Company, by an indenture supplemental thereto, executed and delivered to the Trustee, in
form reasonably satisfactory to the Trustee, all the obligations of the Successor Company under the Securities and this Indenture;
(2)
immediately after giving
pro forma
effect to such transaction (and treating any Indebtedness which becomes an obligation
of the Successor Company or any Subsidiary as a result of such transaction as having been Incurred by the Successor Company or
such Subsidiary at the time of such transaction) no Default shall have occurred and be continuing;
(3)
immediately after giving
pro forma
effect to such transaction, Holdings would (a) be able to Incur an additional
$1.00 of Coverage Indebtedness pursuant to Section 4.03(a) or (b) have had a Consolidated Coverage Ratio greater than the
Consolidated Coverage Ratio immediately prior to such transaction and without giving
pro forma
effect thereto; and
(4)
the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating
that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture.
For purposes
of this Section 5.01, the sale, lease, conveyance, assignment, transfer or other disposition of all or substantially all
of the properties and assets of one or more Subsidiaries of Holdings or the Company, which properties and assets, if held by Holdings
or the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of Holdings
or the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets
of Holdings or the Company, as applicable.
For the avoidance
of doubt, any disposition of the Ethanol Assets or any disposition of shares of Capital Stock of the Ethanol Subsidiary shall
not constitute the sale, lease, conveyance, assignment, transfer or other disposition of all or substantially all of the properties
and assets of Holdings, the Company or the Restricted Subsidiaries.
Successor Holdings
or the Successor Company shall be the successor to Holdings or the Company, as applicable, and shall succeed to, and be substituted
for, and may exercise every right and power of, Holdings or the Company, as applicable, under this Indenture and the predecessor
Holdings or the Company, as applicable, except in the case of a lease, shall be released from the obligation to pay the principal
of and interest on the Securities and Guarantees, as applicable.
For all purposes
of this Indenture, Subsidiaries of Successor Holdings shall, upon any transaction subject to this covenant, become Restricted
Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture.
(c)
Holdings shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease,
in one transaction or a series of transactions, directly or indirectly, all or substantially all of its assets to any Person unless:
(1) except in the case of a Subsidiary Guarantor (x) that has been disposed of in its entirety to another Person (other than
to Holdings or an Affiliate of Holdings), whether through a merger, consolidation or sale of Capital Stock or assets or (y) that,
as a result of the disposition of all or a portion of its Capital Stock, ceases to be a Subsidiary, in both cases, if in connection
therewith Holdings provides an Officer’s Certificate to the Trustee to the effect that Holdings shall comply with its obligations
under Section 4.06 in respect of such disposition, the resulting, surviving or transferee Person (if not such Subsidiary) shall
be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws
of the United States of America, any State thereof or the District of Columbia, and such Person shall expressly assume, by a supplemental
indenture, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(2) immediately after giving effect to such transaction or transactions on a
pro forma
basis (and treating any Indebtedness
which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued
by such Person at the time of such transaction), no Default shall have occurred and be continuing; and (3) Holdings delivers
to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer
and such supplemental indenture, if any, complies with this Indenture.
Notwithstanding
this Section 5.01(c), (1) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties
and assets to Holdings, the Company or any Subsidiary Guarantor and (2) Holdings or the Company may merge with an Affiliate incorporated
solely for the purpose of reincorporating Holdings or the Company in a jurisdiction within the United States of America, any State
thereof or the District of Columbia.
Article
6
Defaults and Remedies
SECTION 6.01.
Events of Default.
Each of the following is an “
Event of Default
”:
(1)
a default in the payment of interest on the Securities when due, continued for thirty (30) days;
(2)
a default in the payment of principal of any Security when due at its Stated Maturity, upon optional redemption, upon required
purchase, upon declaration of acceleration or otherwise;
(3)
the failure by Holdings or the Company to comply with its obligations under Section 5.01;
(4)
the failure by Holdings to comply for one hundred eighty (180) days after the notice specified below with any
of its obligations under Section 4.02;
(5)
the failure by Holdings, the Company or any Subsidiary Guarantor to comply for sixty (60) days after the notice specified
below with any of its agreements contained in the Securities or this Indenture (other than those referred to in clause (1), (2),
(3) or (4) above);
(6)
Indebtedness of Holdings, the Company or any Significant Subsidiary is (x) not paid within any applicable grace period
after final maturity or (y) is accelerated by the holders thereof prior to its Stated Maturity because of a default and,
in either case (x) or (y), the total amount of such Indebtedness unpaid or accelerated exceeds $50,000,000;
provided
that
if, prior to any acceleration of the Securities, (i) any such default is cured or waived, (ii) any such acceleration
is rescinded or (iii) such Indebtedness is repaid, within a period of thirty (30) days from the earlier of continuation
of such default beyond any applicable grace or cure period or the occurrence of such acceleration, as the case may be, any such
Event of Default under this Indenture (but not any acceleration of the Securities) shall be automatically rescinded, so long as
such rescission does not conflict with any judgment or decree;
(7)
Holdings, the Company or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(A)
commences a voluntary case;
(B)
consents to the entry of an order for relief against it in an involuntary case;
(C)
consents to the appointment of a Custodian of it or for any substantial part of its property; or
(D)
makes a general assignment for the benefit of its creditors;
or takes any comparable
action under any foreign laws relating to insolvency;
(8)
a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(A)
is for relief against Holdings, the Company or any Significant Subsidiary in an involuntary case;
(B)
appoints a Custodian of Holdings, the Company or any Significant Subsidiary or for any substantial part of its property;
or
(C)
orders the winding up or liquidation of Holdings, the Company or any Significant Subsidiary;
or
any similar relief is granted under any foreign laws and the order or decree remains unstayed and in effect for 60 days;
(9)
any judgment or decree for the payment of money in excess of $50,000,000 or its foreign currency equivalent at the time
is entered against Holdings, the Company or any Significant Subsidiary, remains outstanding for a period of sixty (60) consecutive
days following the entry of such judgment or decree and is not discharged, waived or the execution thereof stayed, and is not
adequately covered by insurance or indemnities which have been cash collateralized;
(10)
any Guarantee ceases to be in full force and effect or any Guarantor denies or disaffirms
its obligations under its Guarantee (in each case other than as permitted in accordance with the terms of this Indenture)
;
or
(11)
the Company ceases to be a Subsidiary of Holdings.
The foregoing
shall constitute Events of Default whatever the reason for any such Event of Default and whether it is voluntary or involuntary
or is effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body.
The term “
Bankruptcy
Law
” means Title 11,
United States Code
, or any similar Federal or state law for the relief of debtors.
The term “
Custodian
” means any
receiver,
trustee, assignee, liquidator, custodian or similar official under any Bankruptcy Law.
A Default under
clauses (4) and (5) shall not constitute an Event of Default until the Trustee or the Holders of at least 25% in principal amount
of the outstanding Securities notify Holdings of the Default and Holdings does not cure such Default within the time specified
after receipt of such notice. Such notice must specify the Default, demand that it be remedied and state that such notice is a
“
Notice of Default
”. Any Default for the failure to deliver any report within the time periods prescribed in
Section 4.02 or to deliver any notice or certificate pursuant to any other provision of this Indenture shall be deemed to be cured
upon the subsequent delivery of any such report, notice or certificate, even though such delivery is not within the prescribed
period specified.
The Company
shall deliver to the Trustee, within 30 days after the occurrence thereof, written notice in the form of an Officer’s Certificate
of any event which with the giving of notice or the lapse of time would become an Event of Default, its status and what action
the Company is taking or proposes to take with respect thereto.
SECTION 6.02.
Acceleration.
If an Event of Default (other than an Event of Default specified in Section 6.01(7) or (8)) occurs
and is continuing, the Trustee by notice to the Company or the Holders of at least 25% in principal amount of the outstanding
Securities by notice to the Company and the Trustee may declare the principal of and accrued but unpaid interest on all the Securities
to be due and payable. Upon such a declaration, such principal and interest shall be due and payable immediately. If an Event
of Default specified in Section 6.01(7) or (8) occurs and is continuing, the principal of and interest on all the Securities shall
ipso facto
become and be immediately due and payable without any declaration or other act on the part of the Trustee or
any Securityholders. The Holders of a majority in principal amount of the outstanding Securities by notice to the Trustee may
rescind any such acceleration with respect to the Securities and its consequences (including any payment Default that directly
resulted from such acceleration) if the rescission would not conflict with any judgment or decree and if all existing Events of
Default have been cured or waived except nonpayment of principal or interest that has become due solely because of acceleration.
No such rescission shall affect any subsequent Default or impair any right consequent thereto.
SECTION 6.03.
Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy to
collect the payment of principal of or interest on the Securities or to enforce the performance of any provision of the Securities
or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of the Securities or does not produce any of them in the
proceeding. A delay or omission by the Trustee or any Securityholder 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.
SECTION 6.04.
Waiver of Past Defaults.
The Holders of a majority in principal amount of the Securities by notice to the Trustee
may waive an existing Default and its consequences except (a) a Default in the payment of the principal of or interest on
a Security (b) a Default arising from the failure to redeem or purchase any Security when required pursuant to this Indenture
or (c) a Default in respect of a provision that under Section 9.02 cannot be amended without the consent of each Securityholder
affected. When a Default is waived, it is deemed cured, but no such waiver shall extend to any subsequent or other Default or
impair any consequent right.
SECTION 6.05.
Control by Majority.
The Holders of a majority in principal amount of the outstanding Securities may direct the
time, method and place of conducting any proceeding for any remedy available to the Trustee or of exercising any trust or power
conferred on the Trustee. The Trustee, however, may refuse to follow any direction that conflicts with law or this Indenture or,
subject to Section 7.01, that the Trustee determines is unduly prejudicial to the rights of other Securityholders or would involve
the Trustee in personal liability;
provided
,
however
, that the Trustee may take any other action deemed proper by
the Trustee that is not inconsistent with such direction. Prior to taking any action hereunder, the Trustee shall be entitled
to indemnification satisfactory to it in its sole discretion against all losses and expenses caused by taking or not taking such
action.
SECTION 6.06.
Limitation on Suits.
Except to enforce the right to receive payment of principal, premium (if any) or interest when
due, no Securityholder may pursue any remedy with respect to this Indenture or the Securities unless:
(1)
such Holder has previously given to the Trustee written notice stating that an Event of Default is continuing;
(2)
Holders of at least 25% in principal amount of the outstanding Securities have made a written request to the Trustee to
pursue the remedy;
(3)
such Holder or Holders have offered to the Trustee reasonable security or indemnity against any loss, liability or expense;
(4)
the Trustee has not complied with such request within sixty (60) days after the receipt thereof and the offer of security
or indemnity; and
(5)
Holders of a majority in principal amount of the outstanding Securities have not given the Trustee a direction inconsistent
with such request within such 60-day period.
A Securityholder
may not use this Indenture to prejudice the rights of another Securityholder or to obtain a preference or priority over another
Securityholder. In the event that the definitive Securities are not issued to any beneficial owner promptly after the Registrar
has received a request from the Holder of a Global Security to issue
such
definitive Securities to such beneficial owner of its nominee, the Company expressly agrees and acknowledges, with respect to
the right of any Holder to pursue a remedy pursuant to this Indenture, the right of such beneficial holder of Securities to pursue
such remedy with respect to the portion of the Global Security that represents such beneficial holder’s Securities as if
such definitive Securities had been issued.
SECTION 6.07.
Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder
to receive payment of principal of and interest on the Securities held by such Holder, on or after the respective due dates expressed
in the Securities, or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired
or affected without the consent of such Holder.
SECTION 6.08.
Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(1) or (2) occurs and is continuing,
the Trustee may recover judgment in its own name and as trustee of an express trust against the Company 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 7.07.
SECTION 6.09.
Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or documents as may
be necessary or advisable in order to have the claims of the Trustee and the Securityholders allowed in any judicial proceedings
relative to the Company, its creditors or its property and, unless prohibited by law or applicable regulations, may vote on behalf
of the Holders in any election of a trustee in bankruptcy or other Person performing similar functions, 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 reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and its counsel, and any other amounts due the Trustee
under Section 7.07.
SECTION 6.10.
Priorities.
If the Trustee collects any money or property pursuant to this Article 6, it shall pay out the money
or property in the following order:
FIRST: to
the Trustee for amounts due under Section 7.07;
SECOND: to
Securityholders for amounts due and unpaid on the Securities for principal and interest, ratably, without preference or priority
of any kind, according to the amounts due and payable on the Securities for principal and interest, respectively; and
THIRD:
to the Company.
The Trustee
may fix a record date and payment date for any payment to Securityholders pursuant to this Section.
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 does not apply to a suit by the Trustee, a suit
by a Holder pursuant to Section 6.07 or a suit by Holders of more than 10% in aggregate principal amount of the Securities.
SECTION 6.12.
Waiver of Stay or Extension Laws.
The Company (to the extent it may lawfully do so) shall not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company (to
the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and shall not hinder,
delay or impede the execution of any power herein granted to the Trustee, but shall suffer and permit the execution of every such
power as though no such law had been enacted.
Article
7
Trustee
SECTION 7.01.
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
Person would exercise or use under the circumstances in the conduct of such Person’s own affairs.
(b)
Except during the continuance of an Event of Default:
(1)
the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture and
no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2)
in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of
this Indenture. However, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the
requirements of this Indenture.
(c)
The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own
wilful misconduct, except that:
(1)
this paragraph does not limit the effect of paragraph (b) of this Section;
(2)
the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer unless it is proved in
a court of competent jurisdiction that the Trustee was negligent in ascertaining the pertinent facts; and
(3)
the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05.
(d)
Every provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (a), (b) and (c)
of this Section.
(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 Company.
(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 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 indemnity against such risk or liability is not reasonably assured
to it.
(h)
Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the
Trustee shall be subject to the provisions of this Section and to the provisions of the TIA.
SECTION 7.02.
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.
(c)
The Trustee may act through agents and shall not be responsible for the misconduct or negligence of any agent appointed
with due care.
(d)
The Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized
or within its rights or powers;
provided
,
however
, that the Trustee’s conduct does not constitute wilful misconduct
or negligence.
(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 Securities 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.
SECTION 7.03.
Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner or pledgee
of Securities and may otherwise deal with the Company or its Affiliates with the same rights it would have if it were not Trustee.
Any Paying Agent, Registrar, co-registrar or co-paying agent may do the same with like rights. However, the Trustee must comply
with Sections 7.10 and 7.11.
SECTION 7.04.
Trustee’s Disclaimer.
The Trustee shall not be responsible for and makes no representation as to the validity
or adequacy of this Indenture or the Securities, it shall not be accountable for the Company’s use of the proceeds from
the Securities, and it shall not be responsible for any statement of the Company in this Indenture or in any document issued in
connection with the sale of the Securities or in the Securities other than the Trustee’s certificate of authentication.
SECTION 7.05.
Notice of Defaults.
If a Default occurs, is continuing and is known to the Trustee, the Trustee shall mail to each
Securityholder notice of the Default within ninety (90) days after it occurs. Except in the case of a Default in the payment
of principal of or interest on any Security, the Trustee may withhold the notice if and so long as the Trustee in good faith determines
that withholding the notice is not opposed to the interests of the Securityholders.
SECTION 7.06.
Reports by Trustee to Holders.
As promptly as practicable after May 15 in each year, beginning with the first May
15 after the Issue Date, the Trustee shall mail to each Securityholder a brief report dated as of May 15 that complies with
TIA § 313(a). The Trustee shall also comply with TIA § 313(b).
A copy of each
report at the time of its mailing to Securityholders shall be filed with the SEC and each stock exchange (if any) on which the
Securities are listed. The Company agrees to notify promptly the Trustee whenever the Securities become listed on any stock exchange
and of any delisting thereof.
SECTION 7.07.
Compensation and Indemnity.
The Company shall pay to the Trustee from time to time reasonable compensation for its
services. The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust. The
Company shall reimburse the Trustee upon request for all reasonable out-of-pocket expenses incurred or made by it, including costs
of collection, 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. The Company shall indemnify the Trustee against any and
all loss, liability or expense (including attorneys’ fees) incurred by it in connection with the administration of this
trust and the performance of its duties hereunder. The Trustee shall
notify
the Company promptly of any claim for which it may seek indemnity. Failure by the Trustee to so notify the Company shall not relieve
the Company of its obligations hereunder. The Company shall defend the claim and the Trustee may have separate counsel and the
Company shall pay the fees and expenses of such counsel. The Company need not reimburse any expense or indemnify against any loss,
liability or expense incurred by the Trustee through the Trustee’s own willful misconduct, negligence or bad faith.
To secure the
Company’s payment obligations in this Section, the Trustee shall have a lien prior to the Securities on all money or property
held or collected by the Trustee other than money or property held in trust to pay principal of and interest on particular Securities.
The Company’s
payment obligations pursuant to this Section shall survive the discharge of this Indenture. When the Trustee incurs expenses after
the occurrence of an Event of Default specified in Section 6.01(7) or (8) with respect to the Company, the expenses are intended
to constitute expenses of administration under the Bankruptcy Law.
SECTION 7.08.
Replacement of Trustee.
The Trustee may resign at any time by so notifying the Company. The Holders of a majority
in principal amount of the Securities may remove the Trustee by so notifying the Trustee and may appoint a successor Trustee.
The Company shall remove the Trustee if:
(1)
the Trustee fails to comply with Section 7.10;
(2)
the Trustee is adjudged bankrupt or insolvent;
(3)
a receiver or other public officer takes charge of the Trustee or its property; or
(4)
the Trustee otherwise becomes incapable of acting.
If the Trustee
resigns, is removed by the Company or by the Holders of a majority in principal amount of the Securities 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 Company shall promptly appoint a successor Trustee.
A successor
Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Thereupon the resignation
or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties
of the Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to Securityholders. 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 7.07.
If a successor
Trustee does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee or the Holders
of 10% in principal amount of the Securities may petition any court of competent jurisdiction for the appointment of a successor
Trustee.
If the Trustee
fails to comply with Section 7.10, any Securityholder may petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
Notwithstanding
the replacement of the Trustee pursuant to this Section, the Company’s obligations under Section 7.07 shall continue
for the benefit of the retiring Trustee.
SECTION 7.09.
Successor Trustee by Merger.
If the Trustee consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation or banking association, the resulting, surviving or transferee
corporation without any further act shall be the successor Trustee.
In case 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 Securities 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 Securities so authenticated; and in case
at that time any of the Securities shall not have been authenticated, any successor to the Trustee may authenticate such Securities
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 Securities or in this Indenture provided that the certificate of the Trustee
shall have.
SECTION 7.10.
Eligibility; Disqualification.
The Trustee shall at all times satisfy the requirements of TIA § 310(a).
The Trustee shall have a combined capital and surplus of at least $50,000,000 as set forth in its most recent published annual
report of condition. The Trustee shall comply with TIA § 310(b);
provided
,
however
, that there shall be
excluded from the operation of TIA § 310(b)(1) any indenture or indentures under which other securities or certificates
of interest or participation in other securities of the Company are outstanding if the requirements for such exclusion set forth
in TIA § 310(b)(1) are met.
SECTION 7.11.
Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA § 311(a), excluding
any creditor relationship listed in TIA § 311(b). A Trustee who has resigned or been removed shall be subject to TIA
§ 311(a) to the extent indicated.
Article
8
Discharge of Indenture; Defeasance
SECTION 8.01.
Discharge of Liability on Securities; Defeasance.
(a) When (1) the Company delivers to the Trustee
all outstanding Securities (other than Securities replaced pursuant to Section 2.07) for cancelation or (2) all outstanding
Securities have become due and payable, whether at maturity or on a redemption date as a result of the mailing of a notice of
redemption pursuant to Article 3 hereof and, in the case of clause (2), the Company irrevocably deposits with the Trustee
funds sufficient to pay at maturity or upon redemption all outstanding Securities, including interest thereon to maturity or such
redemption date (other than Securities replaced pursuant to Section 2.07), and if in either case the Company pays all other sums
payable hereunder by the Company, then this Indenture shall, subject to Section 8.01(c), cease to be of further effect. The Trustee
shall acknowledge satisfaction and discharge of this Indenture on demand of the Company accompanied by an Officer’s Certificate
and an Opinion of Counsel and at the cost and expense of the Company.
(b)
Subject to Sections 8.01(c) and 8.02, the Company at any time may terminate (1) all its obligations under the Securities
and this Indenture (
“legal defeasance option
”) or (2) its obligations under Sections 4.02, 4.03,
4.04, 4.05, 4.06, 4.07, 4.08, 4.09 and 4.10 and the operation of Sections 6.01(6), 6.01(7), 6.01(8) and 6.01(9) (but, in
the case of Sections 6.01(7) and (8), with respect only to Significant Subsidiaries) and the limitations contained in Section 5.01(a)(3)
and 5.01(b)(3) (“
covenant defeasance option
”). The Company may exercise its legal defeasance option notwithstanding
its prior exercise of its covenant defeasance option.
If the Company
exercises its legal defeasance option, payment of the Securities may not be accelerated because of an Event of Default with respect
thereto. If the Company exercises its covenant defeasance option, payment of the Securities may not be accelerated because of
an Event of Default specified in Section 6.01(4), 6.01(5), 6.01(6), 6.01(7), 6.01(8) or 6.01(9) (but, in the case of Sections 6.01(7)
and (8), with respect only to Significant Subsidiaries) or because of the failure of the Company to comply with Section 5.01(a)(3)
or 5.01(b)(3). If the Company exercises its legal defeasance option or its covenant defeasance option, each Subsidiary Guarantor,
if any, shall be released from all its obligations with respect to its Subsidiary Guarantee.
Upon satisfaction
of the conditions set forth herein and upon request of the Company, the Trustee shall acknowledge in writing the discharge of
those obligations that the Company terminates.
(c)
Notwithstanding clauses (a) and (b) above, the Company’s obligations in Sections 2.03, 2.04, 2.05, 2.06, 2.07,
2.08, 7.07 and 7.08 and in this Article 8 shall survive until the Securities have been paid in full. Thereafter, the Company’s
obligations in Sections 7.07, 8.04 and 8.05 shall survive.
SECTION 8.02.
Conditions to Defeasance.
The Company may exercise its legal defeasance option or its covenant defeasance option
only if:
(1)
the Company irrevocably deposits in trust with the Trustee money or U.S. Government Obligations for the payment of
principal of and interest on the Securities to maturity or redemption, as the case may be;
(2)
the Company delivers to the Trustee a certificate from a nationally recognized firm of independent accountants expressing
their opinion that the payments of principal and interest when due and without reinvestment on the deposited U.S. Government
Obligations plus any deposited money without investment will provide cash at such times and in such amounts as will be sufficient
to pay principal and interest when due on all the Securities to maturity or redemption, as the case may be;
(3)
123 days pass after the deposit is made and during the 123-day period no Default specified in Section 6.01(7)
or (8) with respect to Holdings or the Company occurs which is continuing at the end of the period;
(4)
the deposit does not constitute a default under any other agreement binding on the Company;
(5)
the Company delivers to the Trustee an Opinion of Counsel to the effect that the trust resulting from the deposit does
not constitute, or is qualified as, a regulated investment company under the Investment Company Act of 1940;
(6)
in the case of the legal defeasance option, the Company shall have delivered to the Trustee an Opinion of Counsel stating
that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling, or (B) since
the date of this Indenture there has been a change in the applicable Federal income tax law, in either case to the effect that,
and based thereon such Opinion of Counsel shall confirm that, the beneficial owners of Securities will not recognize income, gain
or loss for Federal income tax purposes as a result of such defeasance and will be subject to Federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if such defeasance had not occurred;
(7)
in the case of the covenant defeasance option, the Company shall have delivered to the Trustee an Opinion of Counsel to
the effect that the beneficial owners of Securities will not recognize income, gain or loss for Federal income tax purposes as
a result of such covenant defeasance and will be subject to Federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such covenant defeasance had not occurred; and
(8)
the Company delivers to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance
and discharge of the Securities as contemplated by this Article 8 have been complied with.
Before or after
a deposit, the Company may make arrangements satisfactory to the Trustee for the redemption of Securities at a future date in
accordance with Article 3.
SECTION 8.03.
Application of Trust Money.
The Trustee shall hold in trust money or U.S. Government Obligations deposited
with it pursuant to this Article 8. It shall apply the deposited money and the money from U.S. Government Obligations
through the Paying Agent and in accordance with this Indenture to the payment of principal of and interest on the Securities.
SECTION 8.04.
Repayment to Company.
The Trustee and the Paying Agent shall promptly turn over to the Company upon request any
excess money or securities held by them at any time.
Subject to
any applicable abandoned property law, the Trustee and the Paying Agent shall pay to the Company upon request any money held by
them for the payment of principal or interest that remains unclaimed for two years, and, thereafter, Securityholders entitled
to the money must look to the Company for payment as general creditors.
SECTION 8.05.
Indemnity for Government Obligations.
The Company shall pay and shall indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against deposited U.S. Government Obligations or the principal and interest received
on such U.S. Government Obligations.
SECTION 8.06.
Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or U.S. Government Obligations in
accordance with this Article 8 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the Company’s and each Guarantor’s obligations
under this Indenture, each Guarantee and the Securities shall be revived and reinstated as though no deposit had occurred pursuant
to this Article 8 until such time as the Trustee or Paying Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with this Article 8;
provided
,
however
, that, if the Company has made any payment
of interest on or principal of any Securities because of the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of such Securities to receive such payment from the money or U.S. Government Obligations held by
the Trustee or Paying Agent.
Article
9
Amendments
SECTION 9.01.
Without Consent of Holders
. The Company
, the Guarantors
and the Trustee
may amend this Indenture or the Securities without notice to or consent of any Securityholder:
(1)
to cure any ambiguity, omission, defect or inconsistency;
(2)
to provide for the assumption by a successor corporation of the obligations of Holdings, the Company or any Subsidiary
Guarantor under this Indenture pursuant to Article 5;
(3)
to provide for uncertificated Securities in addition to or in place of certificated Securities;
provided
,
however
,
that the uncertificated Securities are issued in registered form for Federal income tax purposes;
(4)
to add Guarantees with respect to the Securities, including any Subsidiary Guarantee, or to secure the Securities;
provided
that any amendment or supplemental indenture evidencing any such additional Subsidiary Guarantee may be executed by the relevant
Subsidiary Guarantor and the Trustee and shall not be required to be executed by any other Person;
(5)
to add to the covenants of Holdings, the Company or any Subsidiary Guarantor for the benefit of the Holders or to surrender
any right or power conferred upon Holdings, the Company or any Subsidiary Guarantor;
(6)
to make any change that does not adversely affect the rights of any Holder of the Securities;
(7)
to comply with any requirement of the SEC in connection with qualifying, or maintaining the qualification of, this Indenture
under the TIA;
(8)
to conform the text of this Indenture, the Securities or any Guarantee to any provision of the “Description of the
notes” in the Prospectus to the extent that such provision in such “Description of the notes” was intended to
be a verbatim recitation of a provision of this Indenture, the Securities or such Guarantee; or
(9)
to make any amendment to the provisions of this Indenture relating to the transfer and legending of Securities;
provided
,
however
, that (a) compliance with this Indenture as so amended would not result in Securities being transferred in
violation of the Securities Act or any other applicable securities law and (b) such amendment does not materially and adversely
affect the rights of Holders to transfer Securities.
After an amendment
under this Section becomes effective, the Company shall mail to Securityholders a notice briefly describing such amendment. The
failure to give such notice to all Securityholders, or any defect therein, shall not impair or affect the validity of an amendment
under this Section.
SECTION 9.02.
With Consent of Holders.
The Company
, the Guarantors
and the Trustee may
amend this Indenture or the Securities (including the obligations of the Company to make a Change of Control Offer pursuant to
Section 4.08 of this Indenture) with the written consent of the Holders of at least a majority in principal amount of the Securities
then outstanding (including consents obtained in connection with a tender offer or exchange for the Securities) and any past default
or compliance with any provisions may also be waived with the consent of the Holders of at least a majority in principal amount
of the Securities then outstanding. However, without the consent of each Securityholder affected thereby, an amendment or waiver
may not:
(1)
reduce the principal amount of Securities whose Holders must consent to an amendment;
(2)
reduce the rate of or extend the time for payment of interest on any Security;
(3)
reduce the principal of or change the Stated Maturity of any Security;
(4)
change the provisions applicable to the redemption of any Security contained in Article 3 of this Indenture or Section 5
of the Securities;
(5)
make any Security payable in money other than that stated in the Security;
(6)
impair the right of any Holder of the Securities to receive payment of principal of and interest on such Holder’s
Securities on or after the due dates therefor or to institute suit for the enforcement of any payment on or with respect to such
Holder’s Securities;
(7)
make any change in Section 6.04 or 6.07 or the second sentence of this Section 9.02;
(8)
make any changes in the ranking or priority of any Security that would adversely affect the Securityholders; or
(9)
make any change in, or release other than in accordance with this Indenture, any Guarantee that would adversely affect
the Securityholders.
It shall not
be necessary for the consent of the Holders under this Section to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent approves the substance of the proposed amendment.
After an amendment
under this Section becomes effective, the Company shall mail to Securityholders a notice briefly describing such amendment. The
failure to give such notice to all Securityholders, or any defect therein, shall not impair or affect the validity of an amendment
under this Section.
SECTION 9.03.
Compliance with Trust Indenture Act.
Every amendment to this Indenture or the Securities shall comply with the TIA
as then in effect.
SECTION 9.04.
Revocation and Effect of Consents and Waivers.
A consent to an amendment or a waiver by a Holder of a Security shall
bind the Holder and every subsequent Holder of that Security or portion of the Security that evidences the same debt as the consenting
Holder’s Security, even if notation of the consent or waiver is not made on the Security. However, any such Holder or subsequent
Holder may revoke the consent or waiver as to such Holder’s Security or portion of the Security if the Trustee receives
the notice of revocation before the date the amendment or waiver becomes effective. After an amendment or waiver becomes effective,
it shall bind every Securityholder. An amendment or waiver becomes effective upon the execution of such amendment or waiver by
the Company, any applicable Guarantor and Trustee.
The Company
may, but shall not be obligated to, fix a record date for the purpose of determining the Securityholders entitled to give their
consent or take any other action described above or required or permitted to be taken pursuant to this Indenture. If a record
date is fixed, then notwithstanding the immediately preceding paragraph, those Persons who were Securityholders at such record
date (or their duly designated proxies), and only those Persons, shall be entitled to give such consent or to revoke any consent
previously given or to take any such action, whether or not such Persons continue to be Holders after such record date.
SECTION 9.05.
Notation on or Exchange of Securities.
If an amendment changes the terms of a Security, the Trustee may require
the Securityholder to deliver the Security to the Trustee. The Trustee may place an appropriate notation on the Security regarding
the changed terms and return it to the Holder. Alternatively, if the Company or the Trustee so determines, the Company in exchange
for the Security shall issue and the Trustee shall authenticate a new Security that reflects the changed terms. Failure to make
the appropriate notation or to issue a new Security shall not affect the validity of such amendment.
SECTION 9.06.
Trustee To Sign Amendments.
The Trustee shall sign any amendment authorized pursuant to this Article 9 if the amendment
does not adversely affect the rights, duties, liabilities or immunities of the Trustee. If it does, the Trustee may but need not
sign it. In signing such amendment the Trustee shall be entitled to receive indemnity reasonably satisfactory to it and to receive,
and (subject to Section 7.01) shall be fully protected in relying upon, an Officer’s Certificate and an Opinion of Counsel
stating that such amendment is authorized or permitted by this Indenture. No Opinion of Counsel will be required by the immediately
preceding sentence for the Trustee to execute any amendment or supplement adding a new Guarantor under this Indenture.
SECTION 9.07.
Payment for Consent.
Neither the Company nor any Affiliate of the Company shall, directly or indirectly, pay or
cause to be paid any consideration, whether by way of interest, fee or otherwise, to any Holder for or as an inducement to any
consent, waiver or amendment of any of the terms or provisions of this Indenture or the Securities unless such consideration is
offered to all Holders and is paid to all Holders that so consent, waive or agree to amend in the time frame set forth in solicitation
documents relating to such consent, waiver or agreement.
Article
10
Guarantees
SECTION 10.01.
Guarantees.
Each Guarantor hereby unconditionally and irrevocably guarantees, jointly and severally, on a senior
unsecured basis, to each Holder and to the Trustee and its successors and assigns (a) the full and punctual payment of principal
of and interest on the Securities when due, whether at maturity, by acceleration, by redemption or otherwise, and all other monetary
obligations of the Company under this Indenture and the Securities and (b) the full and punctual performance within applicable
grace periods of all other obligations of the Company under this Indenture and the Securities (all the foregoing being hereinafter
collectively called the “
Guaranteed Obligations
”). Each Guarantor further agrees that the Guaranteed Obligations
may be extended or renewed, in whole or in part, without notice or further assent from such Guarantor and that such Guarantor
shall remain bound under this Article 10 notwithstanding any extension or renewal of any Obligation.
Each Guarantor
waives presentation to, demand of, payment from and protest to the Company of any of the Guaranteed Obligations and also waives
notice of protest for nonpayment. Each Guarantor waives notice of any default under the Securities or the Guaranteed Obligations.
The obligations of each Guarantor hereunder shall not be affected by (1) the failure of any Holder or the Trustee to assert
any claim or demand or to enforce any right or remedy against the Company or any other Person (including any Guarantor) under
this Indenture, the Securities or any other agreement or otherwise; (2) any extension or renewal of any thereof; (3) any
rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Securities or any other
agreement; (4) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them;
(5) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed
Obligations; or (6) except as set forth in Section 10.06, any change in the ownership of a Guarantor.
Each Guarantor
further agrees that its Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee
of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment
of the Guaranteed Obligations.
Except as expressly
set forth in Sections 4.11, 8.01(b), 10.02 and 10.06, the obligations of each Guarantor hereunder shall not be subject to
any reduction,
limitation,
impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall
not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality
or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations
of each Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee
to assert any claim or demand or to enforce any remedy under this Indenture, the Securities or any other agreement, by any waiver
or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations,
or by 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 such Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
Each Guarantor
further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment,
or any part thereof, of principal of or interest on any Obligation is rescinded or must otherwise be restored by any Holder or
the Trustee upon the bankruptcy or reorganization of the Company 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 any
Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Obligation when and as
the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any
other Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or
cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (A) the unpaid amount of such Guaranteed
Obligations, (B) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law)
and (C) all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee.
Each Guarantor
agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (i) the maturity of the
Guaranteed Obligations hereby may be accelerated as provided in Article 6 for the purposes of such Guarantor’s Guarantee
herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations
guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in
Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor
for the purposes of this Section.
Each Guarantor
also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee
or any Holder in enforcing any rights under this Section.
SECTION 10.02.
Limitation on Liability.
Each Guarantor, and by its acceptance of Securities, each Holder, hereby confirms that
it is the intention of all such parties that the Guarantee of each such Guarantor (a) not constitute a fraudulent transfer
or
conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar
foreign, Federal or state law to the extent applicable to any such Guarantee, and (b) not result in a distribution to shareholders
not permitted under the applicable foreign or state law. Any term or provision of this Indenture to the contrary notwithstanding,
the maximum aggregate amount of the Guaranteed Obligations guaranteed hereunder by any Guarantor shall not exceed the maximum
amount that can be hereby guaranteed without rendering this Indenture, as it relates to such Guarantor, voidable under applicable
law relating to fraudulent conveyance or fraudulent transfer or similar laws affecting the rights of creditors generally.
SECTION 10.03.
Successors and Assigns.
This Article 10 shall be binding upon each Guarantor and its successors and assigns and
shall enure 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 by any Holder or the Trustee, the rights and privileges conferred upon that party in this Indenture and in the Securities
shall automatically extend to and be vested in such transferee or assignee, all subject to the terms and conditions of this Indenture.
SECTION 10.04.
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 10 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 affected Guarantors and
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 10 at law, in equity, by statute or otherwise.
SECTION 10.05.
Modification.
Subject to Article 9, no modification, amendment or waiver of any provision of this Article 10, nor
the consent to any departure by any Guarantor therefrom, shall in any event be effective unless the same shall be in writing and
signed by the affected Guarantors and the Trustee, and then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given. No notice to or demand on any Guarantor in any case shall entitle such Guarantor to any other
or further notice or demand in the same, similar or other circumstances.
SECTION 10.06.
Release of Subsidiary Guarantor.
A Subsidiary Guarantor shall be released from its obligations under this Article
10 (other than any obligation that may have arisen previously under Section 10.07):
(1)
upon the designation of such Subsidiary Guarantor as an Unrestricted Subsidiary to the extent permitted by this Indenture,
(2)
at such time as such Subsidiary Guarantor ceases to guarantee any Indebtedness of the Company under the Senior Credit Agreement,
except as a result of payment under such Guarantee,
(3)
upon the sale or other disposition (including by way of consolidation or merger) of such Subsidiary Guarantor in compliance
with all of the terms of this Indenture, following which such Subsidiary Guarantor is no longer a Subsidiary,
(4)
upon defeasance of the Securities pursuant to Article 8, or
(5)
upon the full satisfaction of the Company’s obligations under this Indenture.
At the request
of the Company, the Trustee shall execute and deliver an appropriate instrument evidencing such release.
SECTION 10.07.
Contribution.
Each Guarantor that makes a payment under its Guarantee shall be entitled upon payment in full of
all Guaranteed Obligations under this Indenture to a contribution from each other Guarantor in an amount equal to such other Guarantor’s
pro rata
portion of such payment based on the respective net assets of all the Guarantors at the time of such payment determined
in accordance with GAAP.
Article
11
Miscellaneous
SECTION 11.01.
Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with another provision
which is required to be included in this Indenture by the TIA, the required provision shall control.
SECTION 11.02.
Notices.
Any notice or communication shall be in writing and delivered in person or mailed by first-class mail addressed
as follows:
if to Holdings, the Company
or any Subsidiary Guarantor:
Murphy USA Inc.
200 Peach Street
El Dorado, Arkansas 71730
Attention: General Counsel
Facsimile: 870-881-6893
with a copy to:
Davis Polk &Wardwell
LLP
450 Lexington Avenue
New York, New York 10017
Attention: Joseph A. Hall
Facsimile: 212-701-5565
if to the Trustee:
U.S. Bank National Association
Global Corproate Trust Services
1349 West Peachtree Street,
NW, Suite 1050
Atlanta, Georgia 30309
Attention: Felicia H. Powell
Facsimile: 404-365-7946
Holdings, the
Company, any Subsidiary Guarantor or the Trustee by notice to the other may designate additional or different addresses for subsequent
notices or communications.
Any notice
or communication mailed to a Securityholder shall be mailed to the Securityholder at the Securityholder’s address as it
appears on the registration books of the Registrar and shall be sufficiently given if so mailed within the time prescribed.
Failure to
mail a notice or communication to a Securityholder or any defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided above, it is duly given, whether or not the addressee
receives it.
SECTION 11.03.
Communication by Holders with Other Holders.
Securityholders may communicate pursuant to TIA § 312(b) with
other Securityholders with respect to their rights under this Indenture or the Securities. Holdings, the Company, any Subsidiary
Guarantor the Trustee, the Registrar and anyone else shall have the protection of TIA § 312(c).
SECTION 11.04.
Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee
to take or refrain from taking any action under this Indenture, the Company shall furnish to the Trustee:
(1)
an Officer’s Certificate in form and substance reasonably satisfactory to the Trustee stating that, in the opinion
of the signer, all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied
with; and
(2)
an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 11.05.
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:
(1)
a statement that the individual making such certificate or opinion has read such covenant or condition;
(2)
a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3)
a statement that, in the opinion of such 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
(4)
a statement as to whether or not, in the opinion of such individual, such covenant or condition has been complied with.
SECTION 11.06.
When Securities Disregarded.
In determining whether the Holders of the required principal amount of Securities have
concurred in any direction, waiver or consent, Securities owned by the Company or by any Person directly or indirectly controlling
or controlled by or under direct or indirect common control with the Company 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 Securities which the Trustee knows are so owned shall be so disregarded. Also, subject to the foregoing, only Securities
outstanding at the time shall be considered in any such determination.
SECTION 11.07.
Rules by Trustee, Paying Agent and Registrar.
The Trustee may make reasonable rules for action by or a meeting of
Securityholders. The Registrar and the Paying Agent may make reasonable rules for their functions.
SECTION 11.08.
Legal Holidays.
If an interest payment date is a Legal Holiday, payment shall be made on the next succeeding day
that is not a Legal Holiday with the same force and effect as if made on such date, and the interest which accrues for the period
from such interest payment date to such next day that is not a Legal Holiday will be payable on the next succeeding interest payment
date. If a regular record date is a Legal Holiday, the record date shall not be affected.
SECTION 11.09.
Governing Law.
This Indenture and the Securities shall be governed by, and construed in accordance with, the laws
of the State of New York.
SECTION 11.10.
No Recourse Against Others.
A director, officer, employee or stockholder, as such, of Holdings, the Company or any
Subsidiary Guarantor shall not have any liability for any obligations of Holdings, the Company or any Subsidiary Guarantor under
the Securities or this Indenture or of such Guarantor under its Guarantee or this Indenture for any claim based on, in respect
of or by reason of such obligations or their creation. By accepting a Security, each Securityholder shall waive and release all
such liability. The waiver and release shall be part of the consideration for the issue of the Securities.
SECTION 11.11.
Successors.
All agreements of Holdings, the Company and the Subsidiary Guarantors in this Indenture and the Securities
shall bind
their
respective successors. All agreements of the Trustee in this Indenture shall bind its successors.
SECTION 11.12.
Multiple Originals.
The parties may sign any number of copies of this Indenture. Each signed copy shall be an original,
but all of them together represent the same agreement. One signed copy is enough to prove this Indenture.
SECTION 11.13.
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.
[
Remainder
of Page Intentionally Left Blank
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IN WITNESS
WHEREOF, the parties have caused this Indenture to be duly executed as of the date first written above.
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MURPHY OIL USA, INC.
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By
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/s/ John A. Moore
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Name: John A. Moore
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Title: Senior Vice President and General Counsel
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MURPHY USA INC.
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By
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/s/ John A. Moore
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Name: John A. Moore
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Title: Senior Vice President and General Counsel
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591
Beverage, Inc.
864 holdings, inc.
864
beverage, inc.
EL DORADO PROPERTIES LLC
Murphy
oil trading company (eastern)
spur oil corporation
superior
crude trading company
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By
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/s/ John A. Moore
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Name: John A. Moore
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Title: Vice President
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[
Signature
Page of the Indenture
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U.S. BANK NATIONAL ASSOCIATION
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as Trustee, Registrar and Paying Agent
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By
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/s/ Felicia
H. Powell
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Name: Felicia
H. Powell
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Title: Assistant Vice President
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[
Signature Page of the Indenture
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APPENDIX A
PROVISIONS
RELATING TO THE SECURITIES
1.
Definitions
1.1 Definitions
Capitalized
terms used in this Appendix and not otherwise defined shall have the meanings provided in the Indenture. For the purposes of this
Appendix and the Indenture as a whole, the following terms shall have the meanings indicated below:
“
Definitive
Security
” means a certificated Initial Security that does not include the Global Securities Legend.
“
Depositary
”
means The Depository Trust Company, its nominees and their respective successors.
“
Global
Securities Legend
” means the legend set forth under that caption in
Exhibit A
to the Indenture.
“
Securities
Custodian
” means the custodian with respect to a Global Security (as appointed by the Depositary) or any successor person
thereto, who shall initially be the Trustee.
“
Underwriters
”
means (1) with respect to the Initial Securities issued on the Issue Date, J.P. Morgan Securities LLC, Stephens Inc., Regions
Securities LLC, RBC Capital Markets, LLC, Fifth Third Securities, Inc., U.S. Bancorp Investments, Inc., Wells Fargo Securities,
LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated, BB&T Capital Markets, a division of BB&T Securities LLC,
PNC Capital Markets LLC, UMB Financial Services, Inc. and Hancock Investment Services, Inc. and (2) with respect to each
issuance of Additional Securities, the Persons purchasing such Additional Securities under the related Underwriting Agreement.
“
Underwriting
Agreement
” means (a) the Underwriting Agreement dated April 20, 2017 among Holdings, the Company, the Subsidiary
Guarantors and J.P. Morgan Securities LLC, as representative of the Underwriters listed in Schedule 1 thereto, and (b) any
other similar Underwriting Agreement, if any, relating to Additional Securities.
1.2
Other
Definitions
|
Term:
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Defined
in Section
:
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“Agent Members”
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2.1(c)
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“Global Security”
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2.1(b)
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2.
The
Securities
2.1
Form
and Dating
(a) The Initial
Securities issued on the Issue Date will be offered and sold by the Company pursuant to the Underwriting Agreement. Additional
Securities offered after the date hereof may be offered and sold by the Company from time to time.
(b)
Global
Securities.
The Securities shall be issued initially in the form of one or more permanent global Securities in definitive,
fully registered form (collectively, the “
Global Security
”) without interest coupons and bearing the Global
Securities Legend, which shall be deposited on behalf of the Holders of the Securities represented thereby with the Securities
Custodian, and registered in the name of the Depositary or a nominee of the Depositary, duly executed by the Company and authenticated
by the Trustee as provided in the Indenture. The aggregate principal amount of the Global Securities may from time to time be
increased or decreased by adjustments made on the records of the Trustee and the Depositary or its nominee and on the schedules
thereto as hereinafter provided.
(c)
Book-Entry
Provisions.
This Section 2.1(c) shall apply only to a Global Security deposited with or on behalf of the Depositary.
The Company
shall execute and the Trustee shall, in accordance with this Section 2.1(c) and Section 2.2 and pursuant to an order
of the Company signed by one Officer, authenticate and deliver initially one or more Global Securities that (i) shall be
registered in the name of the Depositary for such Global Security or Global Securities or the nominee of such Depositary and (ii) shall
be delivered by the Trustee to such Depositary or pursuant to such Depositary’s instructions or held by the Trustee as Securities
Custodian.
Members of,
or participants in, the Depositary (“
Agent Members
”) shall have no rights under the Indenture with respect
to any Global Security held on their behalf by the Depositary or by the Trustee as Securities Custodian or under such Global Security,
and the Depositary may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner
of such Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company,
the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization
furnished by the Depositary or impair, as between the Depositary and its Agent Members, the operation of customary practices of
such Depositary governing the exercise of the rights of a holder of a beneficial interest in any Global Security.
(d)
Definitive
Securities.
Except as provided in Section 2.3 or 2.4, owners of beneficial interests in Global Securities will not be
entitled to receive physical delivery of certificated Securities.
2.2
Authentication.
The Trustee shall authenticate and make available for delivery upon a written order of the Company signed by one Officer (a) Initial
Securities
for
original issue on the Issue Date in an aggregate principal amount of $300,000,000 and (b) subject to the terms of the Indenture,
Additional Securities in an unlimited aggregate principal amount. Such order shall specify the amount of the Securities to be
authenticated, the date on which the original issue of Securities is to be authenticated and whether the Securities are to be
Initial Securities or Additional Securities.
2.3
Transfer
and Exchange.
(a)
Transfer and Exchange of Definitive Securities.
When Definitive Securities are presented
to the Registrar with a request:
(i)
to register the transfer of such Definitive Securities; or
(ii) to
exchange such Definitive Securities for an equal principal amount of Definitive Securities of other authorized denominations,
the Registrar shall register
the transfer or make the exchange as requested if its reasonable requirements for such transaction are met;
provided
,
however
,
that the Definitive Securities surrendered for transfer or exchange shall be duly endorsed or accompanied by a written instrument
of transfer in form reasonably satisfactory to the Company and the Registrar, duly executed by the Holder thereof or his attorney
duly authorized in writing.
(b)
Restrictions
on Transfer of a Definitive Security for a Beneficial Interest in a Global Security.
A Definitive Security may not be exchanged
for a beneficial interest in a Global Security except upon satisfaction of the requirements set forth below. Upon receipt by the
Trustee of a Definitive Security, duly endorsed or accompanied by a written instrument of transfer in form reasonably satisfactory
to the Company and the Registrar, together with written instructions directing the Trustee to make, or to direct the Securities
Custodian to make, an adjustment on its books and records with respect to such Global Security to reflect an increase in the aggregate
principal amount of the Securities represented by the Global Security, such instructions to contain information regarding the
Depositary account to be credited with such increase, then the Trustee shall cancel such Definitive Security and cause, or direct
the Securities Custodian to cause, in accordance with the standing instructions and procedures existing between the Depositary
and the Securities Custodian, the aggregate principal amount of Securities represented by the Global Security to be increased
by the aggregate principal amount of the Definitive Security to be exchanged and shall credit or cause to be credited to the account
of the Person specified in such instructions a beneficial interest in the Global Security equal to the principal amount of the
Definitive Security so canceled. If no Global Securities are then outstanding and the Global Security has not been previously
exchanged for certificated securities pursuant to Section 2.4, the Company shall issue and the Trustee shall authenticate,
upon written order of the Company in the form of an Officer’s Certificate, a new Global Security in the appropriate principal
amount.
(c)
Transfer
and Exchange of Global Securities.
(i) The transfer and exchange of Global Securities or beneficial interests therein
shall be effected through the Depositary, in accordance with the Indenture (including applicable restrictions on transfer set
forth herein, if any) and the procedures of the Depositary therefor. A transferor of a
beneficial
interest in a Global Security shall deliver a written order given in accordance with the Depositary’s procedures containing
information regarding the participant account of the Depositary to be credited with a beneficial interest in such Global Security
or another Global Security and such account shall be credited in accordance with such order with a beneficial interest in the
applicable Global Security and the account of the Person making the transfer shall be debited by an amount equal to the beneficial
interest in the Global Security being transferred.
(ii) If
the proposed transfer is a transfer of a beneficial interest in one Global Security to a beneficial interest in another Global
Security, the Registrar shall reflect on its books and records the date and an increase in the principal amount of the Global
Security to which such interest is being transferred in an amount equal to the principal amount of the interest to be so transferred,
and the Registrar shall reflect on its books and records the date and a corresponding decrease in the principal amount of the
Global Security from which such interest is being transferred.
(iii) Notwithstanding
any other provisions of this Appendix (other than the provisions set forth in Section 2.4), a Global Security may not be
transferred as a whole except 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.
(d)
Cancellation
or Adjustment of Global Security.
At such time as all beneficial interests in a Global Security have either been exchanged
for Definitive Securities, transferred, redeemed, repurchased or cancelled, such Global Security shall be returned by the Depositary
to the Trustee for cancellation or retained and cancelled by the Trustee. At any time prior to such cancellation, if any beneficial
interest in a Global Security is exchanged for Definitive Securities, transferred in exchange for an interest in another Global
Security, redeemed, repurchased or canceled, the principal amount of Securities represented by such Global Security shall be reduced
and an adjustment shall be made on the books and records of the Trustee (if it is then the Securities Custodian for such Global
Security) with respect to such Global Security, by the Trustee or the Securities Custodian, to reflect such reduction.
(e)
Obligations
with Respect to Transfers and Exchanges of Securities
(i) To
permit registrations of transfers and exchanges, the Company shall execute and the Trustee shall authenticate, Definitive Securities
and Global Securities at the Registrar’s request.
(ii)
No service charge shall be made for any registration of transfer or exchange, but the Company may require payment of a sum sufficient
to cover any transfer tax, assessments, or similar governmental charge payable in connection therewith (other than any such transfer
taxes, assessments or similar governmental
charge payable upon exchanges pursuant to Sections 2.07, 3.06, 4.06, 4.08
and 9.05 of the Indenture).
(iii)
Prior to the due presentation for registration of transfer of any Security, the Company, the Trustee, the Paying Agent or the
Registrar may deem and treat the person in whose name a Security is registered as the absolute owner of such Security for the
purpose of receiving payment of principal of and interest on such Security and for all other purposes whatsoever, whether or not
such Security is overdue, and none of the Company, the Trustee, the Paying Agent or the Registrar shall be affected by notice
to the contrary.
(iv) All
Securities issued upon any transfer or exchange pursuant to the terms of the Indenture shall evidence the same debt and shall
be entitled to the same benefits under the Indenture as the Securities surrendered upon such transfer or exchange.
(f)
No Obligation
of the Trustee
(i) The
Trustee shall have no responsibility or obligation to any beneficial owner of a Global Security, a member of, or a participant
in the Depositary or any 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 Securities 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 redemption or repurchase)
or the payment of any amount, under or with respect to such Securities. All notices and communications to be given to the Holders
and all payments to be made to Holders under the Securities shall be given or made only to the registered Holders (which shall
be the Depositary or its nominee in the case of a Global Security). The rights of beneficial owners in any Global Security shall
be exercised only through the Depositary subject to the applicable rules and procedures of the Depositary. The Trustee may rely
and shall be fully protected in relying upon information furnished by the Depositary with respect to its members, participants
and any beneficial owners.
(ii) The
Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed
under the Indenture or under applicable law with respect to any transfer of any interest in any Security (including any transfers
between or among Depositary participants, members or beneficial owners in any Global Security) other than to require delivery
of such certificates, opinions and other documentation or evidence as are expressly required by, and to do so if and when expressly
required by, the terms of the Indenture, and to examine the same to determine substantial compliance as to form with the express
requirements hereof.
2.4
Definitive
Securities.
(a) A Global Security deposited with the Depositary or with the Trustee as Securities Custodian pursuant
to Section 2.1 shall be transferred to the
beneficial
owners thereof in the form of Definitive Securities in an aggregate principal amount equal to the principal amount of such Global
Security, in exchange for such Global Security, only if such transfer complies with Section 2.3 and (i) the Depositary
notifies the Company that it is unwilling or unable to continue as a Depositary for such Global Security or if at any time the
Depositary ceases to be a “clearing agency” registered under the Exchange Act, and, in either case, a successor depositary
is not appointed by the Company within 90 days of such notice or after the Company becomes aware of such event, or (ii) an
Event of Default has occurred and is continuing or (iii) the Company, in its sole discretion, notifies the Trustee in writing
that it elects to cause the issuance of certificated Securities under the Indenture.
(b) Any
Global Security that is transferable to the beneficial owners thereof pursuant to this Section 2.4 shall be surrendered by
the Depositary to the Trustee, to be so transferred, in whole or from time to time in part, without charge, and the Trustee shall
authenticate and deliver, upon such transfer of each portion of such Global Security, an equal aggregate principal amount of Definitive
Securities of authorized denominations. Any portion of a Global Security transferred pursuant to this Section shall be executed,
authenticated and delivered only in denominations of $2,000 or any greater integral multiple of $1,000 thereof and registered
in such names as the Depositary shall direct.
(c) Subject
to the provisions of Section 2.4(b), the registered Holder of a Global Security may grant proxies and otherwise authorize
any Person, including Agent Members and Persons that may hold interests through Agent Members, to take any action which a Holder
is entitled to take under the Indenture or the Securities.
(d) In the
event of the occurrence of any of the events specified in Section 2.4(a)(i), (ii) or (iii), the Company will promptly
make available to the Trustee a reasonable supply of Definitive Securities in fully registered form without interest coupons.
EXHIBIT
A
[FORM
OF FACE OF INITIAL SECURITY]
[Global Securities Legend]
UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”),
NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF
THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF
OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE
WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
5.625%
Senior Notes Due 2027
CUSIP
No.
ISIN
No.
Murphy Oil
USA, Inc., a Delaware corporation, promises to pay
,
or registered assigns, the principal sum listed on the Schedule of Increases or Decreases in Global Security attached hereto on
May 1, 2027.
Interest Payment
Dates: May 1 and November 1.
Record Dates:
April 15 and October 15.
Additional
provisions of this Security are set forth on the other side of this Security.
IN WITNESS
WHEREOF, the parties have caused this instrument to be duly executed.
(H)
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MURPHY
OIL USA, INC.
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By
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Name:
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Title:
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TRUSTEE’S
CERTIFICATE OF
AUTHENTICATION
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U.S. BANK NATIONAL ASSOCIATION
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as Trustee, certifies
that this is one of
the Securities referred
to in the Indenture.
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By
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Authorized Signatory
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[FORM
OF REVERSE SIDE OF INITIAL SECURITY]
5.625%
Senior Notes Due 2027
(a) Murphy
Oil USA, Inc., a Delaware corporation (such corporation, and its successors and assigns under the Indenture hereinafter referred
to, being herein called the “
Company
”), promises to pay interest on the principal amount of this Security at
the rate per annum shown above. The Company shall pay interest semiannually in arrears on May 1 and November 1 of each year. Interest
on the Securities shall accrue from the most recent date to which interest has been paid or duly provided for or, if no interest
has been paid or duly provided for, from April 25, 2017 until the principal hereof is due. Interest shall be computed on the basis
of a 360-day year of twelve 30-day months.
The Company
shall pay interest on the Securities (except defaulted interest) to the Persons who are registered Holders at the close of business
on the April 15 or October 15 next preceding the interest payment date even if Securities are canceled after the record date and
on or before the interest payment date. Holders must surrender Securities to a Paying Agent to collect principal payments. The
Company shall pay principal, premium, if any, and interest in money of the United States of America that at the time of payment
is legal tender for payment of public and private debts. Payments in respect of the Securities represented by a Global Security
(including principal, premium, if any, and interest) shall be made by wire transfer of immediately available funds to the accounts
specified by The Depository Trust Company or any successor depositary. The Company will make all payments in respect of a certificated
Security (including principal, premium, if any, and interest), at the office of the Paying Agent, except that, at the option of
the Company, payment of interest may be made by mailing a check to the registered address of each Holder thereof;
provided
,
however
, that payments on the Securities may also be made by wire transfer to a U.S. dollar account maintained by the payee
with a bank in the United States if such Holder elects payment by wire transfer by giving written notice to the Trustee or
the Paying Agent to such effect designating such account no later than 30 days immediately preceding the relevant due date
for payment (or such other date as the Trustee may accept in its discretion).
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3.
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Paying Agent and Registrar
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Initially,
U.S. Bank National Association, a national banking association, the initial Trustee under the Indenture, shall act as Paying Agent
and Registrar. The Company may appoint and change any Paying Agent or Registrar without notice. The Company or any of its domestically
incorporated Wholly Owned Subsidiaries may act as Paying Agent or Registrar.
The Company
issued the Securities under an Indenture dated as of April 25, 2017 (the “
Indenture
”), among the Company, the
Guarantors and the Trustee. The terms of the Securities include those stated in the Indenture and those made part of the Indenture
by reference to the Trust Indenture Act of 1939 (15
U.S.C.
§§ 77aaa-77bbbb) as in effect on the date of
the Indenture (the “
TIA
”). Terms defined in the Indenture and not defined herein have the meanings ascribed
thereto in the Indenture. The Securities are subject to all terms and provisions of the Indenture, and Holders (as defined in
the Indenture) are referred to the Indenture and the TIA for a statement of such terms and provisions.
The Securities
are senior unsecured obligations of the Company. This Security is one of Initial Securities referred to in the Indenture. The
Securities include the Initial Securities and any Additional Securities issued pursuant to the Indenture. The Initial Securities
and any Additional Securities are treated as a single class of securities under the Indenture. The Indenture imposes certain limitations
on the ability of Holdings, the Company and the Restricted Subsidiaries to, among other things, make certain Investments and other
Restricted Payments, pay dividends and other distributions, incur Indebtedness, enter into consensual restrictions upon the payment
of certain dividends and distributions by such Restricted Subsidiaries, issue or sell shares of capital stock of such Restricted
Subsidiaries, enter into or permit certain transactions with Affiliates, create or incur Liens or make asset sales. The Indenture
also imposes limitations on the ability of the Company and each Guarantor to consolidate or merge with or into any other Person
or convey, transfer or lease all or substantially all its property. These limitations are subject to suspension during a Suspension
Period.
To guarantee
the due and punctual payment of the principal of or interest on the Securities and all other amounts payable by the Company under
the Indenture and the Securities when and as the same shall be due and payable, whether at maturity, by acceleration or otherwise,
according to the terms of the Securities and the Indenture, the Guarantors have jointly and severally unconditionally guaranteed
the Guaranteed Obligations on a senior basis pursuant to the terms of the Indenture, subject to the release provisions in the
Indenture in respect of Subsidiary Guarantors, including those applicable during a Suspension Period.
Except as set
forth in the following paragraphs of this Section 5, the Securities shall not be redeemable at the option of the Company prior
to May 1, 2022.
On or after
May 1, 2022, the Securities shall be redeemable at the option of the Company, in whole or in part, at the following redemption
prices (expressed as percentages of principal amount), plus accrued and unpaid interest to the 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), if redeemed
during the 12-month period commencing on May 1 of the years set forth below:
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Year
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Redemption
Price
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2022
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102.813%
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2023
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101.875%
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2024
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100.938%
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2025 and thereafter
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100.000%
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In addition,
at any time prior to May 1, 2020, the Company may at its option on one or more occasions redeem Securities (which includes Additional
Securities, if any) in an aggregate principal amount up to a maximum of 35% of the aggregate principal amount of the Securities
(calculated giving effect to any issuance of Additional Securities, if any) originally issued at a redemption price equal to 105.625%
of the principal amount thereof, plus accrued and unpaid interest thereon to the 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), with the Net Cash Proceeds
from one or more Qualified Equity Offerings;
provided
,
however
, that (1) at least 65% of such aggregate principal
amount of the Securities (calculated giving effect to any issuance of Additional Securities, if any) remains outstanding immediately
after the occurrence of each such redemption (other than Securities held, directly or indirectly, by the Company or its Affiliates);
and (2) each such redemption occurs within ninety (90) days after the date of the related Qualified Equity Offering.
Prior to May
1, 2022, the Company may at its option redeem all or a portion of the notes at a redemption price equal to 100% of the principal
amount of the notes, plus the Applicable Premium as of, and accrued and unpaid interest to, the redemption date (subject to the
right of Holders on the relevant record date to receive interest due on the relevant interest payment date).
Any such redemption
shall be made upon at least 30 days but not more than 60 days notice mailed to each Holder of Securities being redeemed and otherwise
in accordance with the procedures set forth in the Indenture.
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6.
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Mandatory Redemption
or Sinking Fund
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The Securities
are not subject to any mandatory redemption or sinking fund.
Notice of redemption
will be mailed by first-class mail at least 30 days but not more than 60 days before the redemption date to each Holder
of Securities to be redeemed at his or her registered address. Securities in denominations of $2,000 or less may be redeemed in
whole but not in part. If money sufficient to pay the redemption price of and accrued and unpaid interest, if any, on all Securities
(or portions thereof) to be redeemed on the redemption date is deposited with the Paying Agent on or before the
redemption
date and certain other conditions are satisfied, on and after such date interest ceases to accrue on such Securities (or such
portions thereof) called for redemption.
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8.
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Repurchase of Securities
at the Option of Holders upon Change of Control and Asset Dispositions
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Upon the occurrence
of a Change of Control, each Holder of Securities will have the right, subject to certain conditions specified in the Indenture,
to require that the Company repurchase such Holder’s Securities at a purchase price in cash equal to 101% of the principal
amount thereof on the date of purchase
plus
accrued and unpaid interest, if any, to the date of repurchase (subject to
the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date) as provided
in, and subject to the terms of, the Indenture.
In accordance
with Section 4.06 of the Indenture, the Company will be required to offer to purchase Securities upon the occurrence of certain
asset sales or dispositions.
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9.
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Denominations; Transfer;
Exchange
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The Securities
are in registered form without coupons in denominations of $2,000 or any greater integral multiple of $1,000 thereof. A Holder
may transfer or exchange Securities in accordance with the Indenture. Upon any transfer or exchange, the Registrar and the Trustee
may require a Holder, among other things, to furnish appropriate endorsements or transfer documents and to pay any taxes required
by law or permitted by the Indenture. The Registrar need not register the transfer of or exchange any Securities selected for
redemption (except, in the case of a Security to be redeemed in part, the portion of the Security not to be redeemed) or to transfer
or exchange any Securities for a period of 15 days prior to a selection of Securities to be redeemed.
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10.
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Persons Deemed Owners
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Except as provided
in paragraph 2 hereof, the registered Holder of this Security may be treated as the owner of it for all purposes.
Subject to
any applicable abandoned property law, the Trustee and the Paying Agent shall pay to the Company upon request any money held by
them for the payment of principal or interest that remains unclaimed for two years, and, thereafter, Holders entitled to the money
must look to the Company for payment as general creditors.
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12.
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Discharge and Defeasance
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Subject to
certain conditions, the Company at any time may terminate some of or all its obligations under the Securities and the Indenture
if the Company
deposits
with the Trustee money or U.S. Government Obligations for the payment of principal of, and interest on, the Securities to redemption
or maturity, as the case may be.
Subject to
certain exceptions set forth in the Indenture, (i) the Indenture or the Securities may be amended without prior notice to
any Holder but with the written consent of the Holders of at least a majority in aggregate principal amount of the Securities
then outstanding and (ii) any past default or compliance with any provisions may be waived with the written consent of the
Holders of at least a majority in principal amount of the Securities then outstanding. Subject to certain exceptions set forth
in the Indenture, without notice to or consent of any Holder, the Company, the Guarantors and the Trustee may amend the Indenture
or the Securities (i) to cure any ambiguity, omission, defect or inconsistency; (ii) to provide for the assumption by
a successor corporation of the obligations of Holdings, the Company or any Subsidiary Guarantor under this Indenture pursuant
to Article 5; (iii) to provide for uncertificated Securities in addition to or in place of certificated Securities; (iv) to
add Guarantees with respect to the Securities or to secure the Securities; (v) to add to the covenants or to surrender any
right or power conferred upon Holdings, the Company or any Subsidiary Guarantor; (vi) to make any change that does not adversely
affect the rights of any Holder; (vii) to comply with any requirement of the SEC in connection with qualifying, or maintaining
the qualification of, the Indenture under the TIA; (viii) to conform the text of the Indenture, the Securities or any Guarantee
to any provision of the “Description of the notes” in the Prospectus to the extent that such provision in such “Description
of the notes” was intended to be a verbatim recitation of a provision of the Indenture, the Securities or such Guarantee;
or (ix) to make any amendment to the provisions of the Indenture relating to the transfer and legending of Securities.
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14.
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Defaults and Remedies
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If an Event
of Default occurs (other than an Event of Default relating to certain events of bankruptcy, insolvency or reorganization) and
is continuing, the Trustee or the Holders of at least 25% in principal amount of the outstanding Securities may declare the principal
of and accrued but unpaid interest on all the Securities to be due and payable. If an Event of Default relating to certain events
of bankruptcy, insolvency or reorganization occurs and is continuing, the principal of and interest on all the Securities shall
ipso facto
become and be immediately due and payable without any declaration or other act on the part of the Trustee or
any Holders. Under certain circumstances, the Holders of a majority in principal amount of the outstanding Securities may rescind
any such acceleration with respect to the Securities and its consequences.
If an Event
of Default occurs and is continuing, the Trustee shall be under no obligation to exercise any of the rights or powers under the
Indenture at the request or direction of any of the Holders unless such Holders have offered to the Trustee reasonable indemnity
or security against any loss, liability or expense and certain other conditions are complied with. Except to enforce the right
to receive payment of principal, premium (if any) or interest when due, no Holder may pursue any remedy with
respect
to the Indenture or the Securities unless (i) such Holder has previously given to the Trustee written notice stating that
an Event of Default is continuing, (ii) Holders of at least 25% in principal amount of the outstanding Securities have made
a written request to the Trustee to pursue the remedy, (iii) such Holder or Holders have offered to the Trustee reasonable
security or indemnity against any loss, liability or expense, (iv) the Trustee has not complied with such request within
60 days after the receipt thereof and the offer of security or indemnity and (v) Holders of a majority in principal amount
of the outstanding Securities have not given the Trustee a direction inconsistent with such request during such 60-day period.
Subject to certain restrictions, the Holders of a majority in principal amount of the outstanding Securities are given the right
to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or of exercising any
trust or power conferred on the Trustee. The Trustee, however, may refuse to follow any direction that conflicts with law or the
Indenture or that the Trustee determines is unduly prejudicial to the rights of any other Holder or that would involve the Trustee
in personal liability. Prior to taking any action under the Indenture, the Trustee shall be entitled to indemnification satisfactory
to it in its sole discretion against all losses and expenses caused by taking or not taking such action.
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15.
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Trustee Dealings with
the Company
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Subject to
certain limitations imposed by the TIA, the Trustee under the Indenture in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with and collect obligations owed to it by the Company or its Affiliates
and may otherwise deal with the Company or its Affiliates with the same rights it would have if it were not Trustee.
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16.
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No Recourse Against
Others
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A director,
officer, employee or stockholder, as such, of Holdings, the Company or any Subsidiary Guarantor shall not have any liability for
any obligations of Holdings, the Company or any Subsidiary Guarantor under the Securities or the Indenture or for any claim based
on, in respect of or by reason of such obligations or their creation. By accepting a Security, each Holder waives and releases
all such liability. The waiver and release are part of the consideration for the issue of the Securities.
This Security
shall not be valid until an authorized signatory of the Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Security.
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 rights of survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift
to Minors Act).
THIS SECURITY
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
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20.
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CUSIP and ISIN Numbers
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The Company
has caused CUSIP and ISIN numbers to be printed on the Securities and has directed the Trustee to use CUSIP and ISIN 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 Securities or as contained in any notice of redemption and reliance may be placed only on the other identification numbers
placed thereon.
The Company
will furnish to any Holder of Securities upon written request and without charge to the Holder a copy of the Indenture which has
in it the text of this Security.
ASSIGNMENT
FORM
To assign this Security, fill
in the form below:
I or we assign and transfer this
Security to
(Print or type assignee’s
name, address and zip code)
(Insert assignee’s
soc. sec. or tax I.D. No.)
and irrevocably appoint _____________
agent to transfer this Security on the books of the Company. The agent may substitute another to act for him.
Date: ____________________ Your
Signature: _________________________________
Sign exactly as your name appears on the other side of this Security. Signature must be guaranteed by a participant in a recognized
signature guaranty medallion program or other signature guarantor acceptable to the Trustee.
[TO BE ATTACHED
TO GLOBAL SECURITIES]
SCHEDULE
OF INCREASES OR DECREASES IN GLOBAL SECURITY
The initial
principal amount of this Global Security is $[ ]. The following increases or decreases in this Global Security have been made:
Date of
Exchange
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Amount of decrease in Principal Amount of this Global Security
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Amount of increase in Principal Amount of this Global Security
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Principal amount of this Global Security following such decrease or increase
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Signature of authorized signatory of Trustee or Securities Custodian
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OPTION
OF HOLDER TO ELECT PURCHASE
If
you want to elect to have this Security purchased by the Company pursuant to Section 4.06 (Asset Disposition) or 4.08 (Change
of Control) of the Indenture, check the box:
Asset
Disposition
o
Change
of Control
o
If
you want to elect to have only part of this Security purchased by the Company pursuant to Section 4.06 or 4.08 of the
Indenture, state the amount
($2,000 or any greater integral multiple of $1,000 thereof
):
$
Date: _____________________
Your Signature: ______________________________
(Sign exactly as your name appears on the other side of the Security)
Signature
Guarantee:____________________________________________________
Signature must be guaranteed by a participant in a recognized signature guaranty medallion program
or other signature guarantor acceptable to the Trustee
