UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
 
FORM 8-K

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934

Date of Report (Date of earliest event reported): October 5, 2015 (September 30, 2015)


OLIN CORPORATION
(Exact name of registrant as specified in its charter)

Virginia
1-1070
13-1872319
(State or Other Jurisdiction of Incorporation)
(Commission File Number)
(IRS Employer Identification No.)

190 Carondelet Plaza, Suite 1530
Clayton, MO
(Address of principal executive offices)
63105
(Zip Code)
 

 
(314) 480-1400
(Registrant’s telephone number, including area code)
 

(Former name or former address, if changed since last report)


Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
 
☐
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
 
☐
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
 
☐
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
 
☐
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))





Item 1.01.                              Entry into a Material Definitive Agreement .

As previously disclosed, on March 27, 2015, Olin Corporation (“Olin”) and The Dow Chemical Company (“TDCC”) announced that they and certain affiliates had entered into an Agreement and Plan of Merger (the “Merger Agreement”) dated March 26, 2015 among Olin, TDCC, Blue Cube Acquisition Corp. (“Merger Sub”) and Blue Cube Spinco Inc. (“Splitco”), pursuant to which, subject to the terms and conditions of the Merger Agreement and a Separation Agreement dated March 26, 2015 between TDCC and Splitco (the “Separation Agreement”),  (1) TDCC will transfer its U.S. Gulf Coast Chlor-Alkali and Vinyl, Global Chlorinated Organics and Global Epoxy businesses (collectively, the “DCP Business”) to Splitco, (2) TDCC will distribute Splitco’s stock to TDCC’s shareholders by way of a split-off or a combination of a split-off and a spin-off, and (3) Merger Sub will merge with and into Splitco, with Splitco as the surviving corporation (the “Merger”).

As previously disclosed, on September 2, 2015, TDCC commenced an exchange offer in connection with the transactions contemplated by the Merger Agreement, pursuant to which TDCC offered to TDCC shareholders the right to exchange all or a portion of their shares of common stock, par value $2.50 per share, of TDCC (“TDCC common stock”), for shares of common stock, par value $0.001 per share, of Splitco (“Splitco common stock”).

The exchange offer was designed to permit TDCC shareholders to exchange their shares of TDCC common stock for Splitco common stock at a discount of 10 percent to the per-share value of Olin common stock, based on the volume weighted average prices of Dow stock and Olin stock on the three days before the closing date, subject to an upper limit of an aggregate of 2.9318 shares of Splitco common stock for each share of TDCC common stock accepted in the exchange offer. As the upper limit of 2.9318 shares of Splitco common stock per share of TDCC common stock was reached as of October 1, 2015 (the “Initial Expiration Date”), the exchange offer was subject to a mandatory extension of two trading days following the Initial Expiration Date. The exchange offer and withdrawal rights therefore expired at 8.00 a.m., New York City time, on October 5, 2015.

Immediately after the expiration and consummation of the exchange offer and the distribution by TDCC of shares of Splitco common stock to holders of shares of TDCC common stock (the “Distribution”) on October 5, 2015 (the “Closing Date”), Merger Sub merged with and into Splitco, whereby the separate corporate existence of Merger Sub ceased and Splitco continued as the surviving company and became a wholly-owned subsidiary of Olin. In the Merger, each issued and outstanding Splitco common share was converted into the right to receive 0.87482759 shares of common stock, par value $1 per share, of Olin (“Olin common stock”).

Olin’s Registration Statement on Form S-4, as amended (Registration No. 333-203990), which was declared effective by the U.S. Securities and Exchange Commission on September 2, 2015, sets forth certain additional information regarding the DCP Business and the Merger and related transactions.

Guarantee of Splitco’s $875 million Senior Unsecured Credit Facility

As previously disclosed, on June 29, 2015, Splitco entered into a new Credit Agreement on June 23, 2015 (the “Initial Splitco Credit Agreement”) with Wells Fargo Bank, National Association, as administrative agent, and a syndicate of lenders. Pursuant to the requirements of the Initial Splitco Credit Agreement, no later than the business day immediately after the Closing Date, the public company parent of Splitco is required to guarantee the obligations of Splitco under the Initial Splitco Credit Agreement by executing a Guaranty Agreement. On the Closing Date, Olin executed a Guaranty Agreement and guaranteed the obligations of Splitco under the Initial Splitco Credit Agreement.

 

 
Guarantee of Olin’s $1,850 million Senior Unsecured Credit Facilities

As previously disclosed, on June 29, 2015, Olin entered into a new Credit Agreement on June 23, 2015 (the “Initial Olin Credit Agreement”) with Wells Fargo Bank, National Association, as administrative agent, and a syndicate of lenders. Pursuant to the requirements of the Initial Olin Credit Agreement, substantially simultaneously with the Closing Date, Splitco is required to join the Initial Olin Credit Agreement as a guarantor and a revolving borrower by executing a Borrowing Subsidiary Agreement. On the Closing Date, Splitco executed a Borrowing Subsidiary Agreement and became a revolving borrower and a guarantor under the Initial Olin Credit Agreement.
 
Guarantee of Olin’s $600 million Senior Unsecured Credit Facility

As previously disclosed, on August 25, 2015, Olin entered into a new Credit Agreement on August 25, 2015 (the “Sumitomo Credit Agreement”) with Sumitomo Mitsui Banking Corporation, as administrative agent and as a lender. Pursuant to the requirements of the Sumitomo Credit Agreement, substantially simultaneously with the Closing Date, Splitco is required to guarantee the obligations of Olin under the Sumitomo Credit Agreement by executing a Guaranty Joinder. On the Closing Date, Splitco executed a Guaranty Joinder and became a guarantor under the Sumitomo Credit Agreement.

Amendment to $875 million and $1,850 million Senior Unsecured Credit Facilities

             On the Closing Date, following the closing of the Merger, Olin, Olin Canada and Splitco entered into an Amendment Agreement dated as of June 23, 2015 but effective as of the Closing Date (the “Amendment”) with respect to the Initial Olin Credit Agreement and the Initial Splitco Credit Agreement (collectively, the “Initial Credit Agreements”) with the lenders thereunder and Wells Fargo Bank, National Association, as administrative agent. The Amendment amends, restates and combines the Initial Credit Agreements under a single Amended and Restated Credit Agreement (the “Amended and Restated Credit Agreement”). Pursuant to the terms of the Amendment, (i) the initial term loans made to Olin pursuant to the Initial Olin Credit Agreement in the amount of $475 million were converted into obligations of Splitco and guaranteed by Olin, (ii) Splitco was added as an additional borrower under the revolving credit facility under the Initial Olin Credit Agreement and (iii) certain technical amendments were effected in connection therewith. Accordingly, the Amended and Restated Credit Agreement provides for the following facilities: (i) a revolving credit facility under which Olin, Olin Canada and Splitco may obtain loans and letters of credit in an aggregate amount of up to $500 million (the “Revolving Credit Facility”) and (ii) a term credit facility (the “Term Loan Facility”) under which Splitco has incurred term loans in an aggregate of $1,350 million.

The obligations under the Term Loan Facility are obligations of Splitco and are guaranteed by Olin. Advances made under the Revolving Credit Facility are obligations of Olin, Olin Canada and/or Splitco, and are guaranteed (i) with respect to Olin, by Splitco, (ii) with respect to Olin Canada, by Olin and Splitco and (iii) with respect to Splitco, by Olin. The obligations under the Amended and Restated Credit Agreement are unsecured.

Borrowings under the Amended and Restated Credit Agreement will bear interest at a per annum rate equal to a “base rate” or “Eurodollar rate”   plus   an interest rate spread determined by reference to a pricing grid based on Olin’s total leverage ratio.

The proceeds of the Revolving Credit Facility will be used for general corporate purposes.
 

 
Revolving borrowings and issuances of letters of credit under the Amended and Restated Credit Agreement are subject to the satisfaction of customary conditions, including the accuracy of representations and warranties and the absence of defaults.

The Amended and Restated Credit Agreement contains customary representations, warranties and affirmative and negative covenants which are substantially similar to those included in the Initial Credit Agreements. Olin will be required to maintain a total leverage ratio of no more than 4.50 to 1.00 as of the end of each of the first six full fiscal quarters ending after the Closing Date, no more than 4.25 to 1.00 as of the end of each of the next two fiscal quarters ending after the Closing Date, no more than 4.00 to 1.00 as of the end of each of the next two fiscal quarters ending after the Closing Date and no more than 3.75 to 1.00 as of the end of each fiscal quarter thereafter. Olin will be required to maintain an interest coverage ratio of not less than 3.50 to 1.00 as of the end of each full fiscal quarter ending after the Closing Date. The obligations of Olin, Olin Canada and Splitco under the Amended and Restated Credit Agreement may be accelerated upon customary events of default, including non-payment of principal or interest, breaches of covenants, cross-defaults to other material debt and specified bankruptcy events.

Guarantees of Splitco Notes

As previously disclosed, in connection with the Merger, on September 15, 2015, Splitco and certain unaffiliated selling securityholders commenced a private debt offering (the “Private Placement”) of senior notes pursuant to exemptions from the registration requirements of the Securities Act of 1933, as amended (the “Securities Act”). The unaffiliated selling securityholders sold $720 million aggregate principal amount of Splitco’s 9.75% senior notes due 2023 (the “2023 Notes”) and $500 million aggregate principal amount of Splitco’s 10.00% senior notes due 2025 (the “2025 Notes” and together with the 2023 Notes, the “Notes”). The 2023 Notes will mature on October 15, 2023 and the 2025 Notes will mature on October 15, 2025. Interest on the Notes will accrue from October 1, 2015, and the first interest payment date on the Notes will be April 15, 2016.

The unaffiliated selling securityholders received the Notes from TDCC prior to the closing of the Private Placement in exchange for certain outstanding TDCC debt held or acquired by the unaffiliated selling securityholders. Neither Olin nor Splitco received any proceeds from the sale of the Notes by the unaffiliated selling securityholders.

On October 5, 2015, certain initial purchasers purchased the Notes from the unaffiliated selling securityholders. The Notes were sold to qualified institutional buyers in accordance with Rule 144A and to persons outside of the United States pursuant to Regulation S under the Securities Act. The Notes have not been registered under the Securities Act and may not be offered or sold in the United States absent registration or an applicable exemption from the registration requirements of the Securities Act.

On October 5, 2015, the 2023 Notes were issued to TDCC pursuant to an Indenture (the “2023 Base Indenture”) between Splitco and U.S. Bank National Association, as trustee (the “Trustee”), and the 2025 Notes were issued to TDCC pursuant to an Indenture (the “2025 Base Indenture”) between Splitco and the Trustee. Immediately following the consummation of the Merger, (i) Olin became a party to the 2023 Base Indenture pursuant to a Supplemental Indenture (the “2023 Supplemental Indenture” ) among Olin, Splitco and the Trustee, whereby it provided, among other things, a full and unconditional guarantee of the 2023 Notes and (ii) Olin became a party to the 2025 Base Indenture pursuant to a Supplemental Indenture (the “2025 Supplemental Indenture”) among Olin, Splitco and the Trustee, whereby it provided, among other things, a full and unconditional guarantee of the 2025 Notes.
 


In connection with the issuance of the Notes, Splitco and Olin entered into a Registration Rights Agreement on October 5, 2015 relating to the Notes pursuant to which Splitco and Olin agreed to (i) file a registration statement on an appropriate registration form with respect to a registered offer to exchange the Notes of each series for new notes of such series, with terms (including the guarantees by Olin) substantially identical in all material respects to the Notes of such series (except that the exchange notes will not contain terms with respect to transfer restrictions or any increase in annual interest rate) and (ii) use their reasonable best efforts to cause the registration statement to be declared effective under the Securities Act.
 
The foregoing is only a summary of the Notes and the other documents referred to above and is qualified in its entirety by reference to the 2023 Base Indenture, the 2025 Base Indenture, the 2023 Supplemental Indenture, the 2025 Supplemental Indenture, the form of 2023 Notes, the form of 2025 Notes and the Registration Rights Agreement filed as Exhibits 4.1, 4.2, 4.3, 4.4, 4.5, 4.6 and 4.7, respectively, hereto and incorporated by reference herein.
 
I tem 2.01.                            Completion of Acquisition or Disposition of Assets .
 
On the Closing Date, the Merger was consummated pursuant to the Merger Agreement and the Separation Agreement. Pursuant to the Merger Agreement, each issued and outstanding share of Splitco common stock was converted into the right to receive 0.87482759 shares of Olin common stock. Olin issued 87,482,759 shares of Olin common stock to the former holders of Splitco common stock. On the Closing Date, Splitco, which directly and through its subsidiaries holds the DCP Business, became a wholly-owned subsidiary of Olin.

Immediately after consummation of the Merger, approximately 52.7% of the outstanding shares of Olin common stock was held by pre-Merger holders of Splitco common stock and approximately 47.3% of the outstanding shares of Olin common stock was held by pre-Merger Olin shareholders. In connection with the Merger and the related transactions, Olin, TDCC and Splitco entered certain additional agreements relating to, among other things, site, transitional and other services agreements, supply and purchase agreements, real estate agreements, technology licenses and intellectual property agreements.

The information contained in Items 1.01 and 5.02 of this Current Report is incorporated herein by reference. In addition, the foregoing description of the Merger is qualified in its entirety by reference to the Merger Agreement and the Separation Agreement, copies of which are filed as Exhibits 2.1 and 10.1 hereto, respectively, all of which are incorporated herein by reference.
 
Item 2.03.                            Creation of a Direct Financial Obligation or an Obligation under an Off- Balance Sheet Arrangements or Registrant .
 
Borrowing under the Initial Credit Agreements

On the Closing Date, Splitco borrowed $875 million in the form of a term loan under the Initial Splitco Credit Agreement. The proceeds of the term loan were used to make a payment to TDCC on the Closing Date pursuant to the Separation Agreement.

Also on the Closing Date, Olin borrowed $475 million in the form of a term loan under the Initial Olin Credit Agreement. The proceeds of the term loan were used to (i) refinance indebtedness outstanding under Olin’s existing $415 million senior credit facilities under the Credit Agreement dated June 24, 2014, (ii) pay fees and expenses in connection with the Merger, the Merger Agreement, the Separation Agreement and related financing transactions and (iii) make other payments in connection with the Merger and related transactions. A ny proceeds not so used may be used on or after the Closing Date for general corporate purposes.
 

 
Following the borrowings described above, the obligations of Olin and Splitco under the foregoing were combined into a single obligation of Splitco of $1,350 million under the Amended and Restated Credit Agreement. The information contained under the caption “Amendment to $875 million and $1,850 million Senior Unsecured Credit Facilities” in Item 1.01 of this Current Report is incorporated herein by reference into this Item 2.03.

Borrowing under the Sumitomo Credit Agreement

            Also on the Closing Date, Olin borrowed $600 million in the form of a term loan under the Sumitomo Credit Agreement. The proceeds of the term loan were used to (i) consummate the refinancing of the credit agreement governing the existing indebtedness of Dow-Mitsui Chlor-Alkali LLC which was formerly a joint venture between TDCC and Mitsui & Co. Texas Chlor-Alkali, Inc. and which became an indirect subsidiary of Olin upon consummation of the Merger, (ii) pay fees and expenses in connection with the Merger, the Merger Agreement, the Separation Agreement and related financing transactions and (iii) make other payments in connection with the Merger and related transactions.  Any proceeds not so used may be used on or after the Closing Date for general corporate purposes.

A summary of the material terms and conditions of the Sumitomo Credit Agreement is set forth under Item 1.01 in Olin’s Form 8-K filed with the SEC on August 25, 2015, and is incorporated herein by reference.

Item 5.02.                            Departure of Directors or Certain Officers; Election of Directors ;   Appointment of Certain Officers; Compensatory Arrangements of Certain    Officers .

Appointment of New Directors
 
W ith effect from the Closing Date, Olin increased the size of its Board of Directors from nine to eleven directors and elected two new members to the Board of Directors.

William H. Weideman and Carol A. Williams were elected to the Board of Directors of Olin with effect from the Closing Date. Mr. Weideman and Ms. Williams were selected by TDCC for election to the Board of Directors of Olin upon consummation of the Merger. Pursuant to the Merger Agreement, Olin also agreed to take all such action as may be necessary to include each of these individuals as nominees for the Board of Director’s at Olin’s 2016 annual meeting of shareholders.

Each of Mr. Weideman and Ms. Williams will be compensated for board services in the same manner as other members of the Board of Directors of Olin as described in Olin’s annual proxy statement filed March 4, 2015.

The information contained in Items 1.01 and 2.01 of this Current Report is incorporated herein by reference.

Item 5.03                            Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year .

Increase in Authorized Shares
 
With effect from October 1, 2015, Olin amended its Amended and Restated Articles of Incorporation (the “Charter Amendment”) to increase the number of authorized shares of Olin common stock from 120,000,000 to 240,000,000 shares. A copy of the Charter Amendment, as filed with the State Corporation Commission of the Commonwealth of Virginia, is filed as Exhibit 3.1 hereto and is incorporated herein by reference.
 
Amendment to Bylaws
 
On September 30, 2015, the Board of Directors of Olin approved an amendment to Article II, Section 1 of Olin’s Bylaws, such that with effect from the Closing Date, the size of the Board of Directors was expanded from nine to eleven directors.

A copy of the amended Bylaws, which became effective on the Closing Date, are filed as Exhibit 3.2 hereto and are incorporated herein by reference.

Item 8.01                            Other Events .

Press Releases
 
On October 5, 2015, Olin issued a press release announcing the consummation of the Merger and the election of two new members to the Board of Directors. A copy of the press release is filed as Exhibit 99.1 hereto and is incorporated by reference into this Item 8.01.

On October 5, 2015, Olin also issued a press release announcing the election by Olin’s Board of Directors of four new officers. A copy of the press release is filed as Exhibit 99.2 hereto and is incorporated by reference into this Item 8.01.

Unqualified legal opinion
 
A copy of the unqualified legal opinion relating to the securities issued pursuant to Olin’s Registration Statement on Form S-4, as amended (Registration No. 333-203990), which was declared effective by the U.S. Securities and Exchange Commission on September 2, 2015, is filed as Exhibit 5.1 hereto.

Item 9.01                            Financial Statements and Exhibits .

(a) Financial Statements of the DCP Business

The audited combined balance sheets of the DCP Business as of December 31, 2014 and 2013 and the audited combined statements of income (loss) and combined statements of cash flows of the DCP Business for the years ended December 31, 2014, 2013 and 2012, and the notes related thereto, were included in Olin’s Registration Statement on Form S-4, as amended (Registration No. 333-203990), which was declared effective by the SEC on September 2, 2015 , and are incorporated herein by reference.
 
The unaudited combined balance sheets of the DCP Business as of June 30, 2015 and 2014 and the unaudited combined statements of loss and combined statements of cash flows of the DCP Business for the six months ended June 30, 2015 and 2014, and the notes related thereto, were included in Olin’s Registration Statement on Form S-4, as amended (Registration No. 333-203990), which was declared effective by the SEC on September 2, 2015 , and are incorporated herein by reference.
 
The audited balance sheet of Splitco as of March 13, 2015, and the notes related thereto, were included in Olin’s Registration Statement on Form S-4, as amended (Registration 333-203990), which was declared effective by the SEC on September 2, 2015 , and are incorporated herein by reference.
 
(b) Pro Forma Financial Information

The unaudited pro forma condensed combined balance sheet of Olin as of June 30, 2015 and the unaudited pro forma condensed combined statements of operations of Olin for the six months ended June 30, 2015 and the year ended December 31, 2014, and the accompanying notes thereto, are filed as Exhibit 99.3 hereto and are incorporated by herein by reference.

(d) Exhibits
 
 
Exhibit No.
 
Description
2.1
 
Agreement and Plan of Merger, dated as of March 26, 2015, among The Dow Chemical Company, Blue Cube Spinco Inc., Olin Corporation and Blue Cube Acquisition Corp. (filed as Exhibit 2.1 to Olin’s Form 8-K filed with the SEC on March 27, 2015 and incorporated herein by reference)
 
3.1
 
Charter Amendment, as filed with the State Corporation Commission of the Commonwealth of Virginia
 
3.2
 
Bylaws amended as of October 5, 2015
 
4.1
 
Indenture, dated as of October 5, 2015, between Blue Cube Spinco Inc., as issuer, and U.S. Bank National Association, as trustee, governing the 9.75% Senior Notes due 2023
 
4.2
 
Indenture, dated as of October 5, 2015, between Blue Cube Spinco Inc., as issuer, and U.S. Bank National Association, as trustee, governing the 10.00% Senior Notes due 2025
 
4.3
 
First Supplemental Indenture, dated as of October 5, 2015, between Blue Cube Spinco Inc., as issuer, Olin Corporation, as guarantor, and U.S. Bank National Association, as trustee, governing the 9.75% Senior Notes due 2023
 
4.4
 
First Supplemental Indenture, dated as of October 5, 2015, between Blue Cube Spinco Inc., as issuer, Olin Corporation, as guarantor, and U.S. Bank National Association, as trustee, governing the 10.00% Senior Notes due 2025
 
4.5
 
Form of 9.75% Senior Notes due 2023 (included in Exhibit 4.1 filed herewith)
 
4.6
 
Form of 10.00% Senior Notes due 2025 (included in Exhibit 4.2 filed herewith)
 
4.7
 
Registration Rights Agreement, dated as of October 5, 2015, relating to the 9.75% Senior Notes due 2023 and the 10.00% Senior Notes due 2025 by and among Blue Cube Spinco Inc., Olin Corporation, and J.P. Morgan Securities LLC and Wells Fargo Securities, LLC for themselves and as representatives of the other initial purchasers
 
 5.1
 
Opinion of Hunton & Williams LLP as to the shares of common stock issued by Olin Corporation
 
10.1
 
Separation Agreement, dated as of March 26, 2015, between The Dow Chemical Company and Blue Cube Spinco Inc. (filed as Exhibit 10.1 to Olin’s Form 8-K filed with the SEC on March 27, 2015 and incorporated herein by reference)
 
10.2
 
Guaranty Agreement, dated as of October 5, 2015, among Blue Cube Spinco Inc., Olin Corporation and Wells Fargo Bank, National Association, as administrative agent
 
10.3
 
Borrowing Subsidiary Agreement, dated as of October 5, 2015, among Olin Corporation, Blue Cube Spinco Inc. and Wells Fargo Bank, National Association, as administrative agent
 
10.4
 
Guaranty Joinder, dated as of October 5, 2015, among Olin Corporation, Blue Cube Spinco Inc. and Sumitomo Mitsui Banking Corporation, as administrative agent
 
10.5
 
Amendment Agreement, dated as of June 23, 2015, among Olin Corporation, Olin Canada ULC, Blue Cube Spinco Inc., the lenders party thereto and Wells Fargo Bank, National Association, as administrative agent
 
99.1
 
Press release, dated October 5, 2015
 
99.2
 
Press release, dated October 5, 2015
 
99.3
 
Unaudited pro forma condensed combined balance sheet of Olin as of June 30, 2015 and the unaudited pro forma condensed combined statements of operations of Olin for the six months ended June 30, 2015 and the year ended December 31, 2014
 
 
Forward-Looking Statements

This communication includes forward-looking statements.  These statements relate to analyses and other information that are based on management’s beliefs, certain assumptions made by management, forecasts of future results, and current expectations, estimates and projections about the markets and economy in which Olin Corporation (“Olin”) and The Dow Chemical Company’s (“TDCC”) chlorine products business operate.  These statements may include statements regarding the combination of TDCC’s chlorine products business with Olin, the benefits and synergies of this transaction, future opportunities for the combined company and products and any other statements regarding Olin’s and TDCC’s  chlorine products businesses’ future operations, anticipated business levels, future earnings, planned activities, anticipated growth, market opportunities, strategies and competition.

The statements contained in this communication that are not statements of historical fact may include forward-looking statements that involve a number of risks and uncertainties. We have used the words “anticipate,” “intend,” “may,” “expect,” “believe,” “plan,” “estimate,” “will,” and variations of such words and similar expressions in this communication to identify such forward-looking statements.  These statements are not guarantees of future performance and involve certain risks, uncertainties and assumptions, which are difficult to predict and many of which are beyond our control.  Therefore, actual outcomes and results may differ materially from those matters expressed or implied in such forward-looking statements.  Factors that could cause or contribute to such differences include, but are not limited to: the parties’ ability to meet expectations regarding the accounting and tax treatments of the transaction; the possibility that Olin may be unable to achieve expected synergies and operating efficiencies in connection with the transaction within the expected time-frames or at all; the integration of the TDCC’s chlorine products business being more difficult, time-consuming or costly than expected ; the effect of any changes resulting from the transaction in customer, supplier and other business relationships; general market perception of the transaction; exposure to lawsuits and contingencies associated with TDCC’s  chlorine products business; the ability to attract and retain key personnel; prevailing market conditions; changes in economic and financial conditions of Olin and TDCC’s chlorine products business; uncertainties and matters beyond the control of management; and the other risks detailed in Olin’s Form 10-K for the fiscal year ended December 31, 2014 and Olin’s Form 10-Q for the fiscal quarter ended June 30, 2015.  These risks, as well as other risks associated with Olin, TDCC’s chlorine products business and the transaction are also more fully discussed in the prospectus included in the Registration Statement Form S-4, as amended ( Registration No. 333-203990), filed with the Securities and Exchange Commission (the “SEC”) by Olin, and declared effective by the SEC, on September 2, 2015.  The forward-looking statements should be considered in light of these factors.  In addition, other risks and uncertainties not presently known to Olin or that Olin considers immaterial could affect the accuracy of our forward-looking statements.  The reader is cautioned not to rely unduly on these forward-looking statements. Olin undertakes no obligation to update publicly any forward-looking statements, whether as a result of future events, new information or otherwise.



SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
 
  OLIN CORPORATION  
       
 
By:
/s/ George H. Pain  
    Name:
George H. Pain
 
    Title:
Senior Vice President, General Counsel and Secretary
 
       
 Date:  October 5, 2015      
       
 

 
E XHIBIT INDEX

 
Exhibit No.
 
Description
2.1
 
Agreement and Plan of Merger, dated as of March 26, 2015, among The Dow Chemical Company, Blue Cube Spinco Inc., Olin Corporation and Blue Cube Acquisition Corp. (filed as Exhibit 2.1 to Olin’s Form 8-K filed with the SEC on March 27, 2015 and incorporated herein by reference)
 
3.1
 
Charter Amendment, as filed with the State Corporation Commission of the Commonwealth of Virginia
 
3.2
 
Bylaws amended as of October 5, 2015
 
4.1
 
Indenture, dated as of October 5, 2015, between Blue Cube Spinco Inc., as issuer, and U.S. Bank National Association, as trustee, governing the 9.75% Senior Notes due 2023
 
4.2
 
Indenture, dated as of October 5, 2015, between Blue Cube Spinco Inc., as issuer, and U.S. Bank National Association, as trustee, governing the 10.00 % Senior Notes due 2025
 
4.3
 
First Supplemental Indenture, dated as of October 5, 2015, between Blue Cube Spinco Inc., as issuer, Olin Corporation, as guarantor, and U.S. Bank National Association, as trustee, governing the 9.75% Senior Notes due 2023
 
4.4
 
First Supplemental Indenture, dated as of October 5, 2015, between Blue Cube Spinco Inc., as issuer, Olin Corporation, as guarantor, and U.S. Bank National Association, as trustee, governing the 10.00% Senior Notes due 2025
 
4.5
 
Form of 9.75% Senior Notes due 2023 (included in Exhibit 4.1 filed herewith)
 
4.6
 
Form of 10.00% Senior Notes due 2025 (included in Exhibit 4.2 filed herewith)
 
4.7
 
Registration Rights Agreement, dated as of October 5, 2015, relating to the 9.75% Senior Notes due 2023 and the 10.00% Senior Notes due 2025 by and among Blue Cube Spinco Inc., Olin Corporation, and J.P. Morgan Securities LLC and Wells Fargo Securities, LLC for themselves and as representatives of the other initial purchasers
 
 5.1
 
Opinion of Hunton & Williams LLP as to the shares of common stock issued by Olin Corporation
 
10.1
 
Separation Agreement, dated as of March 26, 2015, between The Dow Chemical Company and Blue Cube Spinco Inc. (filed as Exhibit 10.1 to Olin’s Form 8-K filed with the SEC on March 27, 2015 and incorporated herein by reference)
 
10.2
 
Guaranty Agreement, dated as of October 5, 2015, among Blue Cube Spinco Inc., Olin Corporation and Wells Fargo Bank, National Association, as administrative agent
 
10.3
 
Borrowing Subsidiary Agreement, dated as of October 5, 2015, among Olin Corporation, Blue Cube Spinco Inc. and Wells Fargo Bank, National Association, as administrative agent
 
10.4
 
Guaranty Joinder, dated as of October 5, 2015, among Olin Corporation, Blue Cube Spinco Inc. and Sumitomo Mitsui Banking Corporation, as administrative agent
 
10.5
 
Amendment Agreement, dated as of June 23, 2015, among Olin Corporation, Olin Canada ULC, Blue Cube Spinco Inc., the lenders party thereto and Wells Fargo Bank, National Association, as administrative agent
 
99.1
 
Press release, dated October 5, 2015
 
99.2
 
Press release, dated October 5, 2015
 
99.3
 
Unaudited pro forma condensed combined balance sheet of Olin as of June 30, 2015 and the unaudited pro forma condensed combined statements of operations of Olin for the six months ended June 30, 2015 and the year ended December 31, 2014
 
 
 
Exhibit 3.1
 
ARTICLES OF AMENDMENT OF THE
AMENDED AND RESTATED ARTICLES OF INCORPORATION OF
OLIN CORPORATION
           The undersigned, on behalf of the corporation set forth below, pursuant to Title 13.1, Chapter 9, Article 11 of the Code of Virginia, states as follows:
1.        The name of the corporation is Olin Corporation (the “Corporation”).
2.              The amendment (the “Amendment”) adopted is as follows:
           The first sentence of Article FOURTH of the Corporation’s Amended and Restated Articles of Incorporation is deleted in its entirety and replaced with the following:
“The aggregate number of shares that the Corporation shall have authority to issue shall be 10,000,000 shares of Preferred Stock, par value $1 per share
(hereinafter called Preferred Stock), and 240,000,000 shares of Common Stock, par value $1 per share (hereinafter called Common Stock).”
3.              The Amendment was adopted by the Corporation’s Board of Directors on March 26, 2015.
4.              The Amendment was proposed by the Corporation’s Board of Directors and submitted to and approved by the Corporation’s shareholders on September 15, 2015, in accordance with the provisions of Title 13.1, Chapter 9 of the Code of Virginia. The designation, number of outstanding shares and number of votes entitled to be cast by each voting group entitled to vote separately on the Amendment was:
Designation
 
Number of
Outstanding Shares
   
Number of Votes
Entitled to be Cast
 
Common Stock, $1 par value per share
   
77,527,437
     
77,527,437
 

The total number of votes cast for and against the Amendment by each voting group entitled to vote separately on the Amendment was:
Voting Group
 
Votes “FOR”
   
Votes “AGAINST”
 
Common Stock, $1 par value per share
   
56,581,442
     
1,120,299
 

           The total number of votes cast for the Amendment by each voting group was sufficient for approval of the Amendment by the voting group.
5.              Pursuant to Section 13.1-606 of the Virginia Stock Corporation Act, this Amendment shall become effective at 6:00 a.m., Eastern Time, on October 1, 2015.
[Signature Page Follows]

 
 

 
           IN WITNESS WHEREOF , these Articles of Amendment are executed in the name of the Corporation as of this 28th day of September, 2015.
  OLIN CORPORATION, a Virginia corporation  
       
 
By:
/s/ John E. Fischer  
    Name:  John E. Fischer  
    Title: President and Chief Operating Officer  
       
       
    SCC ID #: 0014903-9  
 
 
 
 
 
[Signature Page to Articles of Amendment]
Exhibit 3.2
 
 
 
 
 
BYLAWS


OF


OLIN CORPORATION



As Amended
Effective
October 5, 2015
 

 

 
 
 
 
BYLAWS
of
OLIN CORPORATION
                                                                                                                               
 
ARTICLE I.
MEETINGS OF SHAREHOLDERS.
 
SECTION 1.  Place of Meetings.   All meetings of the shareholders of Olin Corporation (hereinafter called the “Corporation”) shall be held at such place, either within or without the Commonwealth of Virginia, as may from time to time be fixed by the Board of Directors of the Corporation (hereinafter called the “Board”).

SECTION 2.  Annual Meetings.   The annual meeting of the shareholders of the Corporation for the election of directors and for the transaction of such other business as may properly come before the meeting shall be held on the last Thursday in April in each year (or, if that day shall be a legal holiday, then on the next succeeding business day), or on such other day and/or in such other month as may be fixed by the Board, at such hour as may be specified in the notice thereof.

SECTION 3.  Special Meetings.   A special meeting of the shareholders for any purpose or purposes, unless otherwise provided by law or in the Articles of Incorporation of the Corporation as from time to time amended (hereinafter called the “Articles”), may be held at any time upon the call of the Board, the Chairman of the Board, the President or the holders of a majority of the shares of the issued and outstanding stock of the Corporation entitled to vote at the meeting.

SECTION 4.  Notice of Meetings.   Except as otherwise provided by law or the Articles, not less than ten nor more than sixty days’ notice in writing of the place, day, hour and purpose or purposes of each meeting of the shareholders, whether annual or special, shall be given to each shareholder of record of the Corporation entitled to vote at such meeting, in any manner permitted by Section 13.1-610 of the Virginia Stock Corporation Act (the “VSCA”, including electronic transmission as defined in the VSCA). Notice of any meeting of shareholders shall not be required to be given to any shareholder who shall attend the meeting in person or by proxy, unless attendance is for the express purpose of objecting to the transaction of any business because the meeting was not lawfully called or convened, or who shall waive notice thereof in writing signed by the shareholder before, at or after such meeting.  Notice of any adjourned meeting need not be given, except when expressly required by law.

SECTION 5.  Quorum.   Shares representing a majority of the votes entitled to be cast on a matter by all classes or series which are entitled to vote thereon, represented in person or by proxy at any meeting of the shareholders, shall constitute a quorum for the transaction of business thereat with respect to such matter, unless otherwise provided by the VSCA or the Articles.  In the absence of a quorum at any such meeting or any adjournment or adjournments thereof, the chairman of such meeting or shares representing a majority of the votes cast on the matter of adjournment, either in person or by proxy, may adjourn such meeting from time to time until a quorum is obtained.  At any such adjourned meeting at which a quorum has been obtained, any business may be transacted which might have been transacted at the meeting as originally called.
 
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SECTION 6.  Voting.   Unless otherwise provided by the VSCA or the Articles, at each meeting of the shareholders each shareholder entitled to vote at such meeting shall be entitled to one vote for each share of stock standing in his name on the books of the Corporation upon any date fixed as hereinafter provided, and may vote either in person or by proxy. Unless demanded by a shareholder present in person or represented by proxy at any meeting of the shareholders and entitled to vote thereon or so directed by the chairman of the meeting, the vote on any matter need not be by ballot.

A shareholder or a shareholder’s duly authorized attorney-in-fact may execute a writing authorizing another person or persons to act for such shareholder as proxy.  Execution may be accomplished by the shareholder or such shareholder’s duly authorized attorney-in-fact or authorized officer, director, employee or agent signing such writing or causing such shareholder’s signature to be affixed to such writing by any reasonable means including, but not limited to, by facsimile signature.

The President, any Vice President or the Secretary of the Corporation may approve procedures to enable a shareholder or a shareholder’s duly authorized attorney-in-fact to authorize another person or persons to act for such shareholder as proxy by transmitting or authorizing an internet transmission, telephone transmission or other means of electronic transmission (as defined in the VSCA) to the person who will be the holder of the proxy or to a proxy solicitation firm, proxy support service organization or like agent duly authorized by the person who will be the holder of the proxy to receive such transmission, provided that any such transmission must either set forth or be submitted with information from which the judges or inspectors of election can determine that the transmission was authorized by the shareholder or the shareholder’s duly authorized attorney-in-fact.  If it is determined that such transmissions are valid, the judges or inspectors of election shall specify the information upon which they relied.  Any copy, facsimile telecommunication or other reliable reproduction of the writing or transmission created pursuant to this Section 6 may be substituted or used in lieu of the original writing or transmission for any and all purposes for which the original writing or transmission could be used, provided that such copy, facsimile telecommunication or other reproduction shall be a complete reproduction of the entire original writing or transmission.

SECTION 7.  Inspectors.   One or more inspectors of election for any meeting of shareholders may be appointed by the chairman of such meeting, for the purpose of receiving and taking charge of proxies and ballots and deciding all questions as to the qualification of voters, the validity of proxies and ballots and the number of votes properly cast and performing such other functions of that position as are provided in, and in accordance with the procedures set forth in, the VSCA.

SECTION 8.  Conduct of Meeting.   The chairman of the meeting at each meeting of shareholders shall have all the powers and authority vested in presiding officers by law or practice, without restriction, as well as the authority to conduct an orderly meeting and to impose reasonable limits on the amount of time taken up in remarks by any one shareholder.
 
 
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SECTION 9.   Business Proposed by a Shareholder.   To be properly brought before a meeting of shareholders, business must be (i) specified in the notice of meeting (or any supplement thereto) given by or at the direction of the Board of Directors, (ii) otherwise properly brought before the meeting by or at the direction of the Board of Directors or (iii) in the case of an annual meeting of shareholders or a special meeting called at the request of shareholders in accordance with these Bylaws, properly brought before the meeting by a shareholder.  In addition to any other applicable requirements, for business to be properly brought before a meeting by a shareholder, the shareholder must have given timely notice thereof in writing to the Secretary of the Corporation.  To be timely, a shareholder’s notice must be given, either by personal delivery or by United States registered or certified mail, postage prepaid, to the Secretary of the Corporation in the case of an annual meeting, not later than 90 days before the anniversary of the immediately preceding annual meeting and in the case of a special meeting called at the request of shareholders, in accordance with the procedures set forth in Section 10 of Article I of these Bylaws.  A shareholder’s notice to the Secretary shall set forth as to each matter the shareholder proposes to bring before the meeting (i) a brief description of the business desired to be brought before the meeting, including the complete text of any resolutions to be presented at the meeting with respect to such business, and the reasons for conducting such business at the meeting, (ii) the name and address of record of the shareholder proposing such business, (iii) the class and number of shares of the Corporation that are beneficially owned by the shareholder and any other person on whose behalf the proposal is made, and (iv) any material interest of the shareholder and any other person on whose behalf the proposal is made, in such business.  In the event that a shareholder attempts to bring business before a meeting without complying with the foregoing procedure, the chairman of the meeting may declare to the meeting that the business was not properly brought before the meeting and, if he shall so declare, such business shall not be transacted.

SECTION 10.   Special Meeting at Request of Shareholders.    (a)  Any one or more holders of record of a majority of the outstanding shares of Common Stock requesting the Corporation to call a special meeting of shareholders pursuant to Section 2 of Article Eighth of the Articles (collectively, the “Initiating Shareholder”) shall give written notice of such request to the Secretary of the Corporation at its principal executive offices (the “Notice”).  The Notice shall be sent in the manner and contain all the information that would be required in a notice to the Secretary given pursuant to Section 9 of this Article I.

(b)          If the Initiating Shareholder owns of record a majority of the outstanding Common Stock and complies with the other requirements of Sections 9 and 10(a) of this Article I, as determined by the Secretary of the Corporation, the Corporation shall be required to call the special meeting of shareholders requested by the Initiating Shareholder.

(c)          The record date for determining the shareholders of record entitled to vote at a special meeting called pursuant to this Section 10 shall be fixed by the Board of Directors which record date will be within 60 days of the date the Secretary of the Corporation determines the Corporation is required to call such special meeting.  Notice of the meeting shall be given by the Corporation in any manner permitted by Section 13.1-610 of the VSCA, including electronic transmission (as defined in the VSCA) to shareholders of record on such record date within 10 days after the record date (or such longer period as may be necessary for the Corporation to file its proxy materials with, and receive and respond to the comments of, the Securities and Exchange Commission), and the meeting will be held within 50 days after the date of mailing of the notice, as determined by the Board of Directors.
 
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(d)          The business to be conducted at a special meeting called pursuant to this Section 10 shall be limited to the business set forth in the Notice and such other business or proposals as the Board of Directors shall determine and shall be set forth in the notice of meeting.  The Board of Directors or the Chairman of the Board may determine other rules and procedures for the conduct of the meeting.
 
ARTICLE II.
BOARD OF DIRECTORS.
 
SECTION 1.  Number, Classification, Term, Election.   The property, business and affairs of the Corporation shall be managed under the direction of the Board as from time to time constituted.  The Board shall consist of eleven directors, but the number of directors may be increased to any number, not more than eighteen directors, or decreased to any number, not less than three directors, by amendment of these Bylaws.  No director need be a shareholder.  The Board shall be divided into three classes, Class I, Class II and Class III, as nearly equal in number as possible, with the members of each class to serve for the respective terms of office provided in the Articles, and until their respective successors shall have been duly elected or until death or resignation or until removal in the manner hereinafter provided.  In case the number of directors shall be increased, the additional directors to fill the vacancies caused by such increase shall be elected in accordance with the provisions of Section 4 of Article VI of these Bylaws.  Any increase or decrease in the number of directors shall be so apportioned among the classes by the Board as to make all classes as nearly equal in number as possible.

Except as provided in the following paragraph, each director shall be elected by a vote of the majority of the votes cast with respect to that director-nominee’s election at a meeting for the election of directors at which a quorum is present. For purposes of this Section 1, a majority of the votes cast means that the number of shares voted “for” a director must exceed the number of shares voted “against” that director.

The foregoing paragraph shall not apply to any election of directors if there are more nominees for election than the number of directors to be elected, one or more of whom are properly proposed by shareholders. A nominee for director in an election to which this paragraph applies shall be elected by a plurality of the votes cast in such election.

Subject to the rights of holders of any Preferred Stock outstanding, nominations for the election of directors may be made by the Board or a committee appointed by the Board or by any shareholder entitled to vote in the election of directors generally.  However, any shareholder entitled to vote in the election of directors generally may nominate one or more persons for election as directors at a meeting only if it is an annual meeting and written notice of such shareholder’s intent to make such nomination or nominations has been given, either by personal delivery or by United States registered or certified mail, postage prepaid, to the Secretary not later than  90 days before the anniversary of the immediately preceding annual meeting.  Each such notice shall set forth: (a) the name and address of the shareholder who intends to make the nomination and of the person or persons to be nominated; (b) a representation that the shareholder is a holder of record of shares of the Corporation entitled to vote at such meeting (stating the class and number thereof) and intends to appear in person or by proxy at the meeting to nominate the person or persons specified in the notice; (c) a description of all arrangements or understandings between the shareholder and each nominee and any other person or persons (naming such person or persons) pursuant to which the nomination or nominations are to be made by the shareholder; and (d) such other information regarding each nominee proposed by such shareholder as would be required to be included in a proxy statement filed pursuant to the proxy rules of the Securities and Exchange Commission had the nominee been nominated or intended to be nominated by the Board of Directors, and shall include a consent signed by each such nominee to serve as a director of the Corporation if so elected.  The chairman of the meeting may refuse to acknowledge the nomination by a shareholder of any person that is not made in compliance with the foregoing procedure.

 
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SECTION 2.  Compensation.   Each director, in consideration of his serving as such, shall be entitled to receive from the Corporation such amount per annum or such fees for attendance at Board and Committee meetings, or both, in cash or other property, including securities of the Corporation, as the Board shall from time to time determine, together with reimbursements for the reasonable expenses incurred by him in connection with the performance of his duties.  Nothing contained herein shall preclude any director from serving the Corporation, or any subsidiary or affiliated corporation, in any other capacity and receiving appropriate compensation therefor.  If the Board adopts a resolution to that effect, any director may elect to defer all or any part of the annual and other fees hereinabove referred to for such period and on such terms and conditions as shall be permitted by such resolution.

SECTION 3.  Place of Meetings.   The Board may hold its meetings at such place or places within or without the Commonwealth of Virginia as it may from time to time by resolution determine or as shall be specified or fixed in the respective notices or waivers of notice thereof.

SECTION 4.  Organization Meeting.   After each annual election of directors, as soon as conveniently may be, the newly constituted Board shall meet for the purposes of organization. At such organization meeting, the newly constituted Board shall elect officers of the Corporation and transact such other business as shall come before the meeting.  Notice of organization meetings of the Board need not be given.  Any organization meeting may be held at any other time or place which shall be specified in a notice given as hereinafter provided for special meetings of the Board, or in a waiver of notice thereof signed by all the directors.
 

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SECTION 5.  Regular Meetings.   Regular meetings of the Board may be held at such time and place as may from time to time be specified in a resolution adopted by the Board then in effect; and, unless otherwise required by such resolution, or by law, notice of any such regular meeting need not be given.

SECTION 6.  Special Meetings.   Special meetings of the Board shall be held whenever called by the Chairman of the Board or the Chief Executive Officer, or at the request of any three directors, by the Secretary. Notice of a special meeting shall be mailed to each director, addressed to him at his residence or usual place of business, not later than the second day before the day on which such meeting is to be held, or may be given to him by electronic transmission (as defined in the VSCA), which shall be deemed given as set forth in Section 13.1-686.c of the VSCA.  Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Board need be specified in the notice of such meeting, unless required by the Articles or by the VSCA.

SECTION 7.  Quorum.   At each meeting of the Board the presence of a majority of the number of directors fixed by these Bylaws shall be necessary to constitute a quorum.  The act of a majority of the directors present at a meeting at which a quorum shall be present shall be the act of the Board, except as may be otherwise required by the Articles or these Bylaws.  Any meeting of the Board may be adjourned by a majority vote of the directors present at such meeting or by the Chairman of the Board.

SECTION 8.  Waivers of Notice of Meetings.   Anything in these Bylaws or in any resolution adopted by the Board to the contrary notwithstanding, notice of any meeting of the Board need not be given to any director if such notice shall be waived in writing signed by such director before, at or after the meeting, or if such director shall be present at the meeting. Any meeting of the Board shall be a legal meeting without any notice having been given or regardless of the giving of any notice or the adoption of any resolution in reference thereto, if every member of the Board shall be present thereat.  Except as otherwise provided by law or these Bylaws, waivers of notice of any meeting of the Board need not contain any statement of the purpose of the meeting.

SECTION 9.  Telephone Meetings.   Members of the Board or any committee may participate in a meeting of the Board or such committee by means of a conference telephone or other means of communications whereby all directors participating may simultaneously hear each other during the meeting, and participation by such means shall constitute presence in person at such meeting.

SECTION 10.  Actions Without Meetings.   Any action that may be taken at a meeting of the Board or of a committee may be taken without a meeting if a consent in writing, setting forth the action, shall be signed, either before or after such action, by all of the directors or all of the members of the committee, as the case may be.  Such consent shall have the same force and effect as a unanimous vote.

SECTION 11.  Chairman of the Board.   A Chairman of the Board shall be elected by the Board and shall preside at all meetings of the Board and of the shareholders and, in the absence of the Chairman of the Executive Committee, at all meetings of the Executive Committee.  He shall perform such other duties and exercise such other powers as may from time to time be prescribed by the Board or, if he shall not be the Chief Executive Officer, by the Chief Executive Officer.

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ARTICLE III. 1
INDEMNIFICATION AND LIMIT ON LIABILITY.
 
(a) Every person who is or was a director, officer or employee of the Corporation, or who, at the request of the Corporation, serves or has served in any such capacity with another corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise shall be indemnified by the Corporation against any and all liability and reasonable expense that may be incurred by him in connection with or resulting from any claim, action or proceeding (whether brought in the right of the Corporation or any such other corporation, entity, plan or otherwise), civil or criminal, in which he may become involved, as a party or otherwise, by reason of his being or having been a director, officer or employee of the Corporation, or such other corporation, entity or plan while serving at the request of the Corporation, whether or not he continues to be such at the time such liability or expense shall have been incurred, unless such person engaged in willful misconduct or a knowing violation of the criminal law.

As used in this Article III: (i) the terms “liability” and “expense” shall include, but shall not be limited to, counsel fees and disbursements and amounts of judgments, fines or penalties against, and amounts paid in settlement by, a director, officer or employee; (ii) the terms “director,” “officer” and “employee,” unless the context otherwise requires, include the estate or personal representative of any such person; (iii) a person is considered to be serving an employee benefit plan as a director, officer or employee of the plan at the Corporation’s request if his duties to the Corporation also impose duties on, or otherwise involve services by, him to the plan or, in connection with the plan, to participants in or beneficiaries of the plan; (iv) the term “occurrence” means any act or failure to act, actual or alleged, giving rise to a claim, action or proceeding; and (v) service as a trustee or as a member of a management or similar committee of a partnership or joint venture shall be considered service as a director, officer or employee of the trust, partnership or joint venture.

The termination of any claim, action or proceeding, civil or criminal, by judgment, settlement, conviction or upon a plea of nolo contendere , or its equivalent, shall not create a presumption that a director, officer or employee did not meet the standards of conduct set forth in this paragraph (a).  The burden of proof shall be on the Corporation to establish, by a preponderance of the evidence, that the relevant standards of conduct set forth in this paragraph (a) have not been met.

(b) Any indemnification under paragraph (a) of this Article shall be made unless (i) the Board, acting by a majority vote of those directors who were directors at the time of the occurrence giving rise to the claim, action or proceeding involved and who are not at the time parties to such claim, action or proceeding (provided there are at least five such directors), finds that the director, officer or employee has not met the relevant standards of conduct set forth in such paragraph (a), or (ii) if there are not at least five such directors, the Corporation’s principal Virginia legal counsel, as last designated by the Board as such prior to the time of the occurrence giving rise to the claim, action or proceeding involved, or in the event for any reason such Virginia counsel is unwilling to so serve, then Virginia legal counsel mutually acceptable to the Corporation and the person seeking indemnification, deliver to the Corporation their written advice that, in their opinion, such standards have not been met.
 
1 Compiler’s Note:  This Article III was adopted by the shareholders at the Annual Meeting of Shareholders, April 28, 1994.

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(c) Expenses incurred with respect to any claim, action or proceeding of the character described in paragraph (a) shall, except as otherwise set forth in this paragraph (c), be advanced by the Corporation prior to the final disposition thereof upon receipt of an undertaking by or on behalf of the recipient to repay such amount if it is ultimately determined that he is not entitled to indemnification under this Article III.  No security shall be required for such undertaking and such undertaking shall be accepted without reference to the recipient’s financial ability to make repayment.  Notwithstanding the foregoing, the Corporation may refrain from, or suspend, payment of expenses in advance if at any time before delivery of the final finding described in paragraph (b), the Board or Virginia legal counsel, as the case may be, acting in accordance with the procedures set forth in paragraph (b), find by a preponderance of the evidence then available that the officer, director or employee has not met the relevant standards of conduct set forth in paragraph (a).

(d) No amendment or repeal of this Article III shall adversely affect or deny to any director, officer or employee the rights of indemnification provided in this Article III with respect to any liability or expense arising out of a claim, action or proceeding based in whole or substantial part on an occurrence the inception of which takes place before or while this Article III, as adopted by the shareholders of the Corporation at the 1986 Annual Meeting of the Corporation, is in effect. The provisions of this paragraph (d) shall apply to any such claim, action or proceeding whenever commenced, including any such claim, action or proceeding commenced after any amendment or repeal to this Article III.

(e) The rights of indemnification provided in this Article III shall be in addition to any rights to which any such director, officer or employee may otherwise be entitled by contraction or as a matter of law.

(f) In any proceeding brought by or in the right of the Corporation or brought by or on behalf of shareholders of the Corporation, no director or officer of the Corporation shall be liable to the Corporation or its shareholders for monetary damages with respect to any transaction, occurrence or course of conduct, whether prior or subsequent to the effective date of this Article lll, except for liability resulting from such person’s having engaged in willful misconduct or a knowing violation of the criminal law or any federal or state securities law.

(g) An amendment to this Article III shall be approved only by a majority of the votes entitled to be cast by each voting group entitled to vote thereon.

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ARTICLE IV.
COMMITTEES.
 
SECTION 1.  Executive Committee.   The Board may, by resolution or resolutions adopted by a majority of the number of directors fixed by these Bylaws, appoint two or more directors to constitute an Executive Committee, each member of which shall serve as such during the pleasure of the Board, and may designate for such Committee a Chairman, who shall continue as such during the pleasure of the Board.

All completed action by the Executive Committee shall be reported to the Board at its meeting next succeeding such action or at its meeting held in the month following the taking of such action, and shall be subject to revision or alteration by the Board; provided, that no acts or rights of third parties shall be affected by any such revision or alteration.

The Executive Committee shall fix its own rules of procedure and shall meet where and as provided by such rules or by resolution of the Board. At all meetings of the Executive Committee, a majority of the full number of members of such Committee shall constitute a quorum, and in every case the affirmative vote of a majority of members present at any meeting of the Executive Committee at which a quorum is present shall be necessary for the adoption of any resolution.

During the intervals between the meetings of the Board, the Executive Committee shall possess and may exercise all the power and authority of the Board (including, without limitation, all the power and authority of the Board in the management, control and direction of the financial affairs of the Corporation) except with respect to those matters reserved to the Board by the VSCA, in such manner as the Executive Committee shall deem best for the interests of the Corporation, in all cases in which specific directions shall not have been given by the Board.

SECTION 2.  Other Committees.   To the extent permitted by the VSCA, the Board may from time to time by resolution adopted by a majority of the number of directors fixed by these Bylaws create such other committees of directors as the Board shall deem advisable and with such limited authority, functions and duties as the Board shall by resolution prescribe.  The Board shall have the power to change the members of any such committee at any time, to fill vacancies, and to discharge any such committee, either with or without cause, at any time.
 
ARTICLE V.
OFFICERS.
 
SECTION 1.  Number, Term, Election.   The officers of the Corporation shall be a Chief Executive Officer, a President, one or more Vice Presidents, a Treasurer, a Controller and a Secretary.  The Board may appoint such other officers and such assistant officers and agents with such powers and duties as the Board may find necessary or convenient to carry on the business of the Corporation.  Such officers and assistant officers shall serve until their successors shall be chosen, or as otherwise provided in these Bylaws. Any two or more offices may be held by the same person.
 

 
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SECTION 2.  Chief Executive Officer.   The Chief Executive Officer shall, subject to the control of the Board and any Executive Committee, have full authority and responsibility for directing the conduct of the business, affairs and operations of the Corporation.  In addition to acting as Chief Executive Officer of the Corporation, he shall perform such other duties and exercise such other powers as may from time to time be prescribed by the Board and shall see that all orders and resolutions of the Board and any Executive Committee are carried into effect.  In the event of the inability of the Chief Executive Officer to act, the Board will designate an officer of the Corporation to perform the duties of that office.

SECTION 3.  President.   The President shall have such powers and perform such duties as may from time to time be prescribed by the Board or, if he shall not be the Chief Executive Officer, by the Chief Executive Officer.

SECTION 4.  Vice Presidents.   Each Vice President shall have such powers and perform such duties as may from time to time be prescribed by the Board, the Chief Executive Officer or any officer to whom the Chief Executive Officer may have delegated such authority.

SECTION 5.  Treasurer.   The Treasurer shall have the general care and custody of the funds and securities of the Corporation. He shall perform such other duties and exercise such other powers as may from time to time be prescribed by the Board, the Chief Executive Officer or any officer to whom the Chief Executive Officer may have delegated such authority.  If the Board shall so determine, he shall give a bond for the faithful performance of his duties, in such sum as the Board may determine to be proper, the expense of which shall be borne by the Corporation.  To such extent as the Board shall deem proper, the duties of the Treasurer may be performed by one or more assistants, to be appointed by the Board.

SECTION 6.  Controller.   The Controller shall be the principal accounting officer of the Corporation.  He shall keep full and accurate accounts of all assets, liabilities, receipts and disbursements and other transactions of the Corporation and cause regular audits of the books and records of the Corporation to be made.  He shall also perform such other duties and exercise such other powers as may from time to time be prescribed by the Board, the Chief Executive Officer or any officer to whom the Chief Executive Officer may have delegated such authority.  If the Board shall so determine, he shall give a bond for the faithful performance of his duties, in such sum as the Board may determine to be proper, the expense of which shall be borne by the Corporation.  To such extent as the Board shall deem proper, the duties of the Controller may be performed by one or more assistants, to be appointed by the Board.

SECTION 7.  Secretary.   The Secretary shall keep the minutes of meetings of shareholders, of the Board, and, when requested, of Committees of the Board; and he shall attend to the giving and serving of notices of all meetings thereof.  He shall keep or cause to be kept such stock and other books, showing the names of the shareholders of the Corporation, and all other particulars regarding them, as may be required by law. He shall also perform such other duties and exercise such other powers as may from time to time be prescribed by the Board, the Chief Executive Officer or any officer to whom the Chief Executive Officer may have delegated such authority.  To such extent as the Board shall deem proper, the duties of the Secretary may be performed by one or more assistants, to be appointed by the Board.
 

 
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ARTICLE VI.
REMOVALS, RESIGNATIONS AND VACANCIES.
 
SECTION 1.  Removal of Directors.   Any director may be removed at any time but only with cause, by the affirmative vote of the holders of record of a majority of the shares of the Corporation entitled to vote on the election of directors, taken at a special meeting of the shareholders, the purpose, or one of the purposes, of which (as stated in the meeting notice) is removal of the director.

SECTION 2.  Removal of Officers.   Any officer, assistant officer or agent of the Corporation may be removed at any time, either with or without cause, by the Board in its absolute discretion. Any such removal shall be without prejudice to the recovery of damages for breach of the contract rights, if any, of the officer, assistant officer or agent removed.  Election or appointment of an officer, assistant officer or agent shall not of itself create contract rights.

SECTION 3.  Resignation.   Any director, officer or assistant officer of the Corporation may resign as such at any time by giving his written resignation to the Board, the Chief Executive Officer or the Secretary of the Corporation. Such resignation shall take effect at the time or upon the occurrence of a future event specified therein or, if no time or such event is specified therein, at the time of delivery thereof, and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.

SECTION 4.  Vacancies.   Any vacancy in the Board caused by death, resignation, disqualification, removal, an increase in the number of directors, or any other cause, may be filled (a) by the holders of shares of the Corporation entitled to vote on the election of directors, but only at an annual meeting of shareholders, or (b) by the affirmative vote of a majority of the remaining directors though less than a quorum of the Board at any regular or special meeting thereof.  Each director so elected by the Board shall hold office until the next annual election of directors, and each director so elected by the shareholders shall hold office for a term expiring at the annual meeting of shareholders at which the term of the class to which he has been elected expires, and, in each case, until his successor shall be elected, or until his death, or until he shall resign, or until he shall have been removed in the manner hereinabove provided.  Any vacancy in the office of any officer or assistant officer caused by death, resignation, removal or any other cause, may be filled by the Board for the unexpired portion of the term.

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ARTICLE VII.
CONTRACTS, LOANS, CHECKS, DRAFTS, DEPOSITS, ETC.
 
SECTION 1.  Execution of Contracts.   Except as otherwise provided by law or by these Bylaws, the Board (i) may authorize any officer, employee or agent of the Corporation to execute and deliver any contract, agreement or other instrument in writing in the name and on behalf of the Corporation, and (ii) may authorize any officer, employee or agent of the Corporation so authorized by the Board to delegate such authority by written instrument to other officers, employees or agents of the Corporation.  Any such authorization by the Board may be general or specific and shall be subject to such limitations and restrictions as may be imposed by the Board.  Any such delegation of authority by an officer, employee or agent may be general or specific, may authorize re‑delegation, and shall be subject to such limitations and restrictions as may be imposed in the written instrument of delegation by the person making such delegation.

SECTION 2.  Loans.   No loans shall be contracted on behalf of the Corporation and no negotiable paper shall be issued in its name unless authorized by the Board.  When authorized by the Board, any officer, employee or agent of the Corporation may effect loans and advances at any time for the Corporation from any bank, trust company or other institution, or from any firm, corporation or individual, and for such loans and advances may make, execute and deliver promissory notes, bonds or other certificates or evidences of indebtedness of the Corporation and when so authorized may pledge, hypothecate or transfer any securities or other property of the Corporation as security for any such loans or advances.  Such authority may be general or confined to specific instances.

SECTION 3.  Checks, Drafts, etc.   All checks, drafts and other orders for the payment of money out of the funds of the Corporation and all notes or other evidences of indebtedness of the Corporation shall be signed on behalf of the Corporation in such manner as shall from time to time be determined by the Board.

SECTION 4.  Deposits.   All funds of the Corporation not otherwise employed shall be deposited from time to time to the credit of the Corporation in such banks, trust companies or other depositories as the Board may select or as may be selected by the Treasurer or any other officer, employee or agent of the Corporation to whom such power may from time to time be delegated by the Board.

SECTION 5.  Voting of Securities.   Unless otherwise provided by the Board, the Chief Executive Officer may from time to time appoint an attorney or attorneys, or agent or agents of the Corporation, in the name and on behalf of the Corporation, to cast the votes which the Corporation may be entitled to cast as the holder of stock or other securities in any other corporation, any of whose stock or other securities may be held by the Corporation, at meetings of the holders of the stock or other securities of such other corporation, or to consent in writing, in the name of the Corporation as such holder, to any action by such other corporation, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consent, and may execute or cause to be executed in the name and on behalf of the Corporation and under its corporate seal, or otherwise, all such written proxies or other instruments as such officer may deem necessary or proper in the premises.

13

ARTICLE VIII.
CAPITAL STOCK.
 
SECTION 1.  Certificates.   Shares of the stock of the Corporation may be certificated or uncertificated, as provided under the VSCA.  Each shareholder, upon written request to the transfer agent of the Corporation, shall be entitled to a certificate for the stock of the Corporation in such form as may from time to time be approved by the Board, signed by the Chairman of the Board, the President or a Vice President and the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer or any other officer authorized by these Bylaws or a resolution of the Board.  Any such certificate may, but need not, bear the seal of the Corporation or a facsimile thereof.  If any such certificate is countersigned by a transfer agent or registered by a registrar other than the Corporation or an employee of the Corporation, the signatures of any of the officers above specified upon such certificate may be facsimiles.  In case any such officer who shall have signed or whose facsimile signature shall have been placed upon such certificate shall have ceased to be such before such certificate is issued, it may be issued by the Corporation with the same effect as if such officer had not ceased to be such at the date of its issue.

Within a reasonable time after the issuance or transfer of uncertificated stock, the Corporation shall send to the registered owner thereof a written notice setting forth: the name of the Corporation; that the Corporation is organized under the law of the Commonwealth of Virginia; the name of the shareholder; the number and class of shares (and the designation of the series, if any); and any restrictions on the transfer or registration of transfer of such shares of stock imposed by the Articles, these Bylaws, any agreement among shareholders or any agreement between shareholders and the Corporation.  Such notice shall either (i) contain a summary of the designations, rights, preferences, and limitations applicable to each class or series within a class that the Corporation is authorized to issue and the variations in rights, preferences, and limitations determined for each series (and the authority of the Board of Directors to determine variations for future series) or (ii) a statement that the Corporation will furnish the shareholder this information on request in writing and without charge.

SECTION 2.  Transfers.   Uncertificated shares of stock of the Corporation shall be transferable upon proper instructions from the holder of such shares, and certificated  shares of the Corporation shall be transferable on the stock books of the Corporation by the holder in person or by his attorney thereunto authorized by power of attorney duly executed and filed with the Secretary or the transfer agent.  Except as hereinafter provided in the case of loss, destruction or mutilation of certificates, no transfer of certificated stock shall be entered until the previous certificate, if any, given for the same shall have been surrendered and canceled.  Except as otherwise provided by law, no transfer of shares shall be valid as against the Corporation, its shareholders or creditors, for any purpose, until it shall have been entered in the stock records of the Corporation by an entry showing from and to whom transferred.  The Board may also make such additional rules and regulations as it may deem expedient concerning the issue and transfer of certificates representing shares of the capital stock of the Corporation.
 

 
14
SECTION 3.  Status as Shareholders.  Except as may otherwise be required by the VSCA, by the Articles or by these Bylaws, the Corporation shall be entitled to treat (i) each record holder of certificated shares, as shown on its books, and (ii) each registered owner of uncertificated shares, as the owner of such stock for all purposes, including the payment of dividends and the right to vote with respect thereto, regardless of any transfer, pledge or other disposition of such stock, until (i) any certificated shares have been transferred on the books of the Corporation in accordance with the requirements of these Bylaws, or (ii) proper notice of such event as to any uncertificated shares has been given to the Corporation by the registered owner thereof.  It shall be the duty of (i) each record holder of certificated shares and (ii) each registered owner of uncertificated shares, in either case, to notify the Corporation of his post office address and any changes thereto.

SECTION 4.  Record Date.   For the purpose of determining shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or entitled to receive payment of any dividend, or in order to make a determination of shareholders for any other proper purpose, the Board may fix in advance a date as the record date for any such determination of shareholders, such date in any case to be not more than seventy days prior to the date on which the particular action, requiring such determination of shareholders, is to be taken.  When a determination of shareholders entitled to vote at any meeting of shareholders has been made as provided in this section, such determination shall apply to any adjournment thereof unless the Board fixes a new record date, which it shall do if the meeting is adjourned to a date more than 120 days after the date fixed for the original meeting.

SECTION 5.  Lost, Destroyed or Mutilated Certificates.   In case of loss, destruction or mutilation of any certificate of stock upon proof of such loss, destruction or mutilation and upon the giving of a bond of indemnity to the Corporation in such form and in such sum as the Board may direct; (or without requiring any bond when, in the judgment of the Board, it is proper so to do), the Corporation may issue a new certificate or may issue uncertificated shares in place of the certificate previously issued by the Corporation.

SECTION 6.  Control Share Acquisitions.   Article 14.1 of Chapter 9 of Title 13.1 of the Code of Virginia shall not apply to acquisitions of shares of the Corporation.
 
ARTICLE IX.
INSPECTION OF RECORDS.
 
The Board from time to time shall determine whether, to what extent, at what times and places, and under what conditions and regulations the accounts and books and papers of the Corporation, or any of them, shall be open for the inspection of the shareholders, and no shareholder shall have any right to inspect any account or book or paper of the Corporation except as expressly conferred by statute or by these Bylaws or authorized by the Board.

 
15

ARTICLE X.
AUDITOR.
 
The Board shall annually appoint an independent accountant who shall carefully examine the books of the Corporation.  One such examination shall be made immediately after the close of the fiscal year and be ready for presentation at the annual meeting of shareholders of the Corporation, and such other examinations shall be made as the Board may direct.
 
ARTICLE XI.
SEAL.
 
The seal of the Corporation shall be circular in form and shall bear the name of the Corporation and the year “1892.”
 
ARTICLE XII.
FISCAL YEAR.
 
The fiscal year of the Corporation shall end on the 31st day of December in each year.
 
ARTICLE XIII.
AMENDMENTS.
 
The Bylaws of the Corporation may be altered, amended or repealed and new Bylaws may be adopted by the Board (except to the extent limited by Section 1 of Article II and Article III(g)), or by the holders of the outstanding shares of the Corporation entitled to vote generally at any annual or special meeting of the shareholders when notice thereof shall have been given in the notice of the meeting of shareholders.

16


ARTICLE XIV.
HEADINGS; USAGE.
 
The headings of Sections in these Bylaws are provided for convenience only and shall not affect their construction or interpretation. All references to “Section” or “Sections” refer to the corresponding Sections or Sections of these Bylaws.  All references to specific sections of the VSCA shall be deemed to refer to any successor provision of such statute or any successor statute, as appropriate.  All references in these Bylaws to gender or number shall be construed to mean such gender or number as is appropriate in the particular circumstances.
 
EMERGENCY BYLAWS.
 
SECTION 1.  Definitions.   As used in these Emergency Bylaws,

(a) the term “period of emergency” shall mean any period during which a quorum of the Board cannot readily be assembled because of some catastrophic event.

(b) the term “incapacitated” shall mean that the individual to whom such term is applied shall not have been determined to be dead but shall be missing or unable to discharge the responsibilities of his office; and

(c) the term “senior officer” shall mean the President, any corporate Vice President, the Treasurer, the Controller and the Secretary, and any other person who may have been so designated by the Board before the emergency.

SECTION 2.  Applicability.   These Emergency Bylaws, as from time to time amended, shall be operative only during any period of emergency.  To the extent not inconsistent with these Emergency Bylaws, all provisions of the regular Bylaws of the Corporation shall remain in effect during any period of emergency.

No officer, director or employee shall be liable for actions taken in good faith in accordance with these Emergency Bylaws.

SECTION 3.  Board of Directors.   (a) A meeting of the Board may be called by any director or senior officer of the Corporation.  Notice of any meeting of the Board need be given only to such of the directors as it may be feasible to reach at the time and by such means as may be feasible at the time, including publication or radio, and at a time less than twenty‑four hours before the meeting if deemed necessary by the person giving notice.

(b) At any meeting of the Board, three directors in attendance shall constitute a quorum.  Any act of a majority of the directors present at a meeting at which a quorum shall be present shall be the act of the Board.  If less than three directors should be present at a meeting of the Board, any senior officer of the Corporation in attendance at such meeting shall serve as a director for such meeting, selected in order of rank and within the same rank in order of seniority.
 
17

 
(c) In addition to the Board’s powers under the regular Bylaws of the Corporation to fill vacancies on the Board, the Board may elect any individual as a director to replace any director who may be incapacitated and to serve until the latter ceases to be incapacitated or until the termination of the period of emergency, whichever first occurs.  In considering officers of the Corporation for election to the Board, the rank and seniority of individual officers shall not be pertinent.

(d) The Board, during as well as before any such emergency, may change the principal office or designate several alternative offices or authorize the officers to do so.

SECTION 4.  Appointment of Officers.   In addition to the Board’s powers under the regular Bylaws of the Corporation with respect to the election of officers, the Board may elect any individual as an officer to replace any officer who may be incapacitated and to serve until the latter ceases to be incapacitated.

SECTION 5.  Amendments.   These Emergency Bylaws shall be subject to repeal or change by further action of the Board of Directors or by action of the shareholders, except that no such repeal or change shall modify the provisions of the second paragraph of Section 2 with regard to action or inaction prior to the time of such repeal or change.  Any such amendment of these Emergency Bylaws may make any further or different provision that may be practical and necessary for the circumstances of the emergency.
 
 
 
 
 
18
Exhibit 4.1
 


 
 
 

 


SENIOR NOTES INDENTURE

Dated as of October 5, 2015

Between

BLUE CUBE SPINCO INC.

and

U.S. BANK NATIONAL ASSOCIATION,
as Trustee

9.75% SENIOR NOTES DUE 2023
 
 


 
 
 



CROSS-REFERENCE TABLE*

Trust Indenture Act 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)
 
7.10
 
(c)
 
N.A.
311
(a)
 
7.11
 
(b)
 
7.11
 
(c)
 
N.A.
312
(a)
 
2.05
 
(b)
 
12.03
 
(c)
 
12.03
313
(a)
 
7.06
 
(b)(1)
 
N.A.
 
(b)(2)
 
7.06; 7.07
 
(c)
 
7.06; 12.02
 
(d)
 
7.06
314
(a)
 
4.03; 12.02; 12.05
 
(b)
 
N.A.
 
(c)(1)
 
12.04
 
(c)(2)
 
12.04
 
(c)(3)
 
N.A.
 
(d)
 
N.A.
 
(e)
 
12.05
 
(f)
 
N.A.
315
(a)
 
7.01
 
(b)
 
7.05; 12.02
 
(c)
 
7.01
 
(d)
 
7.01
 
(e)
 
6.14
316
(a)(last sentence)
 
2.09
 
(a)(1)(A)
 
6.05
 
(a)(1)(B)
 
6.04
 
(a)(2)
 
N.A.
 
(b)
 
6.07
 
(c)
 
2.12; 9.04
317
(a)(1)
 
6.08
 
(a)(2)
 
6.12
 
(b)
 
2.04
318
(a)
 
12.01
 
(b)
 
N.A.
 
(c)
 
12.01
N.A. means not applicable.
*  This Cross-Reference Table is not part of the Indenture.
 
 
-i-

 
TABLE OF CONTENTS

Page


ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE
1
   
Section 1.01
Definitions
1
Section 1.02
Other Definitions
23
Section 1.03
Rules of Construction
24
Section 1.04
Incorporation by Reference of Trust Indenture Act
25
Section 1.05
Acts of Holders
25
     
ARTICLE 2 THE NOTES
27
   
Section 2.01
Form and Dating; Terms
27
Section 2.02
Execution and Authentication
28
Section 2.03
Registrar and Paying Agent
28
Section 2.04
Paying Agent to Hold Money in Trust
29
Section 2.05
Holder Lists
29
Section 2.06
Transfer and Exchange
29
Section 2.07
Replacement Notes
30
Section 2.08
Outstanding Notes
31
Section 2.09
Treasury Notes
31
Section 2.10
Temporary Notes
31
Section 2.11
Cancellation
31
Section 2.12
Defaulted Interest
32
Section 2.13
CUSIP and ISIN Numbers
32
     
ARTICLE 3 REDEMPTION
32
   
Section 3.01
Notices to Trustee
32
Section 3.02
Selection of Notes to Be Redeemed or Purchased
33
Section 3.03
Notice of Redemption
33
Section 3.04
Effect of Notice of Redemption
34
Section 3.05
Deposit of Redemption or Purchase Price
34
Section 3.06
Notes Redeemed or Purchased in Part
35
Section 3.07
Optional Redemption
35
Section 3.08
Mandatory Redemption
35
Section 3.09
Offers to Repurchase by Application of Excess Proceeds
35
     
ARTICLE 4 COVENANTS
38
   
Section 4.01
Payment of Notes
38
Section 4.02
Maintenance of Office or Agency
38
Section 4.03
Provision of Financial Information
38
Section 4.04
Compliance Certificate
39
Section 4.05
Limitation on Restricted Payments
39
Section 4.06
Limitation on Debt
42
Section 4.07
Limitation on Liens
43
Section 4.08
Limitation on Sale and Lease-Back Transactions.
45
Section 4.09
Future Guarantors
46
 
 
-ii-
 
Page
 
Section 4.10
Offer to Repurchase Upon Change of Control.
46
Section 4.11
Limitation on Asset Sales
48
Section 4.12
Effectiveness of Covenants.
50
     
ARTICLE 5 SUCCESSORS
50
   
Section 5.01
Consolidation, Merger, Conveyance, Transfer or Lease
50
Section 5.02
Successor Entity Substituted
52
     
ARTICLE 6 DEFAULTS AND REMEDIES
52
   
Section 6.01
Events of Default
52
Section 6.02
Acceleration
53
Section 6.03
Other Remedies
53
Section 6.04
Waiver of Past Defaults
54
Section 6.05
Control by Majority
54
Section 6.06
Limitation on Suits
54
Section 6.07
Rights of Holders to Receive Payment
55
Section 6.08
Collection Suit by Trustee
55
Section 6.09
Restoration of Rights and Remedies
55
Section 6.10
Rights and Remedies Cumulative
55
Section 6.11
Delay or Omission Not Waiver
56
Section 6.12
Trustee May File Proofs of Claim
56
Section 6.13
Priorities
56
Section 6.14
Undertaking for Costs
57
     
ARTICLE 7 TRUSTEE
57
   
Section 7.01
Duties of Trustee
57
Section 7.02
Rights of Trustee
58
Section 7.03
Individual Rights of Trustee
59
Section 7.04
Trustee’s Disclaimer
59
Section 7.05
Notice of Defaults
59
Section 7.06
Reports by Trustee to Holders of the Notes
59
Section 7.07
Compensation and Indemnity
60
Section 7.08
Replacement of Trustee
61
Section 7.09
Successor Trustee by Merger, etc.
61
Section 7.10
Eligibility; Disqualification
62
Section 7.11
Preferential Collection of Claims Against the Issuer
62
     
ARTICLE 8 DEFEASANCE AND COVENANT DEFEASANCE
62
   
Section 8.01
Option to Effect Defeasance or Covenant Defeasance
62
Section 8.02
Defeasance and Discharge
62
Section 8.03
Covenant Defeasance
63
Section 8.04
Conditions to Legal or Covenant Defeasance
63
Section 8.05
Deposited Money and Government Securities to Be Held in Trust; Other Miscellaneous Provisions
64
Section 8.06
Repayment to the Issuer
65
Section 8.07
Reinstatement
65
 
 
-iii-
 
Page
     
ARTICLE 9 AMENDMENT, SUPPLEMENT AND WAIVER
65
   
Section 9.01
Without Consent of Holders
65
Section 9.02
With Consent of Holders
66
Section 9.03
Compliance with Trust Indenture Act
68
Section 9.04
Revocation and Effect of Consents
68
Section 9.05
Notation on or Exchange of Notes
68
Section 9.06
Trustee to Sign Amendments, etc.
68
     
ARTICLE 10 SATISFACTION AND DISCHARGE
69
   
Section 10.01
Satisfaction and Discharge
69
Section 10.02
Application of Trust Money
69
     
ARTICLE 11 GUARANTEES
70
   
Section 11.01
Guarantee
70
Section 11.02
Limitation on Subsidiary Guarantor Liability
71
Section 11.03
Execution and Delivery
72
Section 11.04
Subrogation
72
Section 11.05
Benefits Acknowledged
72
Section 11.06
Release of Guarantees
72
     
ARTICLE 12 MISCELLANEOUS
73
   
Section 12.01
Trust Indenture Act Controls
73
Section 12.02
Notices
73
Section 12.03
Communication by Holders with Other Holders
74
Section 12.04
Certificate and Opinion as to Conditions Precedent
75
Section 12.05
Statements Required in Certificate or Opinion
75
Section 12.06
Rules by Trustee and Agents
75
Section 12.07
No Personal Liability of Directors, Officers, Employees, Members, Partners and Stockholders
75
Section 12.08
Governing Law
76
Section 12.09
Waiver of Jury Trial
76
Section 12.10
Force Majeure
76
Section 12.11
No Adverse Interpretation of Other Agreements
76
Section 12.12
Successors
76
Section 12.13
Severability
76
Section 12.14
Counterpart Originals
76
Section 12.15
Table of Contents, Headings, etc.
77
Section 12.16
Facsimile and PDF Delivery of Signature Pages
77
Section 12.17
U.S.A. PATRIOT Act
77
Section 12.18
Payments Due on Non-Business Days
77
Section 12.19
Qualification of Indenture
77
 
 
-iv-

 
Appendix A
Provisions Relating to Initial Notes, Additional Notes and Exchange Notes
   
Exhibit A
Form of Note
Exhibit B
Form of Institutional Accredited Investor Transferee Letter of Representation
Exhibit C
Form of Supplemental Indenture to Be Delivered by Subsequent Guarantors
Exhibit D
Form of First Supplemental Indenture
 

-v-

INDENTURE, dated as of October 5, 2015, between Blue Cube Spinco Inc., a Delaware corporation (the “ Issuer ”), and U.S. Bank National Association, as Trustee.
 
W I T N E S S E T H

WHEREAS, the Issuer has duly authorized the creation of and issue of $720,000,000 aggregate principal amount of 9.75% Senior Notes due 2023 (the “ Initial Notes ”);
 
NOW, THEREFORE, the Issuer and the Trustee agree as follows for the benefit of each other and for the equal and ratable benefit of the Holders of the Notes.

ARTICLE 1

DEFINITIONS AND INCORPORATION BY REFERENCE

Section 1.01                 Definitions .

“ 2025 Notes ” means the $500,000,000 aggregate principal amount of 10.00% Senior Notes due 2025 issued on the date hereof by the Issuer.

“ Acquired Debt ” means Debt (1) of a Person (including an Unrestricted Subsidiary) existing at the time such Person becomes a Restricted Subsidiary, or is merged with or into the Issuer or a Restricted Subsidiary, or (2) assumed in connection with the acquisition of assets from such Person. Acquired Debt shall be deemed to have been incurred, with respect to clause (1) of the preceding sentence, on the date such Person becomes a Restricted Subsidiary and, with respect to clause (2) of the preceding sentence, on the date of consummation of such acquisition of assets.

“ Additional Interest ” means any additional interest payable under the terms of the Registration Rights Agreement as a consequence of the failure to effectuate in a timely manner the exchange offer and/or shelf registration procedures set forth in the Registration Rights Agreement, as and to the extent provided for therein.

“ Additional Notes ” means additional Notes (other than the Initial Notes and Exchange Notes for such Initial Notes) issued from time to time under this Indenture in accordance with Section 2.01 and Section 4.06.

“ 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” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”) when used with respect to any Person means possession, directly or indirectly, of 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.

“ Agent ” means any Registrar or Paying Agent.

“ Asset Acquisition ” means:

(1) an Investment by the Issuer or any Restricted Subsidiary in any other Person pursuant to which such Person shall become a Restricted Subsidiary, or shall be merged with or into the Issuer or any Restricted Subsidiary; or
 
(2) the acquisition by the Issuer or any Restricted Subsidiary of the assets of any Person which constitute all or substantially all of the assets of such Person, any division or line of business of such Person or any other properties or assets of such Person other than in the ordinary course of business and consistent with past practices.

“ Asset Sale ” means any transfer, conveyance, sale, lease or other disposition (including, without limitation, dispositions pursuant to any consolidation or merger) by the Issuer or any of its Restricted Subsidiaries to any Person in any single transaction or series of transactions of:

(i) Capital Stock in another Person (other than directors’ qualifying shares or shares or interests required to be held by foreign nationals pursuant to local law); or

(ii) any other property or assets (other than in the normal course of business, including any sale or other disposition of obsolete or permanently retired equipment);

provided, however , that the term “Asset Sale” shall exclude:

(1) any asset disposition permitted by Section 5.01 that constitutes a disposition of all or substantially all of the assets of the Issuer and its Restricted Subsidiaries taken as a whole;

(2) any transfer, conveyance, sale, lease or other disposition of property or assets, the gross proceeds of which (exclusive of indemnities) do not exceed in any one or related series of transactions $25.0 million;

(3) sales or other dispositions of cash or Eligible Cash Equivalents;

(4) sales of interests in Unrestricted Subsidiaries;

(5) the sale and leaseback of any assets within 90 days of the acquisition thereof; provided that any assets acquired in the Transactions shall be deemed to have been acquired on the Issue Date;

(6) the disposition of assets that, in the good faith judgment of the Issuer, are no longer used or useful in the business of such entity;

(7) a Restricted Payment or Investment that is otherwise permitted by this Indenture;

(8) any trade-in of equipment in exchange for other equipment; provided, however that in the good faith judgment of the Issuer, the Issuer or such Restricted Subsidiary receives equipment having a fair market value equal to or greater than the equipment being traded in;

(9) the creation of a Lien (but not the sale or other disposition of the property subject to such Lien);

(10) leases or subleases in the ordinary course of business to third persons not interfering in any material respect with the business of the Issuer or any of its Restricted Subsidiaries and otherwise in accordance with the provisions of this Indenture;

(11) any disposition by a Restricted Subsidiary to the Issuer or by the Issuer or a Restricted Subsidiary to a Restricted Subsidiary;
 
-2-
 
(12) dispositions of accounts receivable in connection with the collection or compromise thereof in the ordinary course of business and consistent with past practice;

(13) licensing or sublicensing of intellectual property or other general intangibles in accordance with industry practice in the ordinary course of business;

(14) any transfer of accounts receivable, or a fractional undivided interest therein, by a Receivable Subsidiary in a Qualified Receivables Transaction; or

(15) sales of accounts receivable to a Receivable Subsidiary pursuant to a Qualified Receivables Transaction for the fair market value thereof as determined by the Issuer in good faith; including cash or other financial accommodation, such as the provision of letters of credit by such Receivable Subsidiary on behalf of or for the benefit of the transferor of such accounts receivable, in an amount at least equal to 75% of the fair market value thereof as determined by the Issuer in good faith (for the purposes of this clause (15), Purchase Money Notes will be deemed to be cash).

For purposes of this definition, any series of related transactions that, if effected as a single transaction, would constitute an Asset Sale, shall be deemed to be a single Asset Sale effected when the last such transaction which is a part thereof is effected.

“ Attributable Debt ” means and as of any particular time, the present value, discounted at a rate per year equal to the weighted average of the interest rate of the Notes, compounded semi-annually, of the obligation of a lessee for rental payments, not including amounts payable by the lessee for maintenance, property taxes and insurance, due during the remaining term of any lease, including any period for which such lease has been extended or may, at the option of the lessor, be extended.

“ Average Life ” means, as of any date of determination, with respect to any Debt, the quotient obtained by dividing (i) the sum of the products of (x) the number of years from the date of determination to the dates of each successive scheduled principal payment (including any sinking fund or mandatory redemption payment requirements) of such Debt multiplied by (y) the amount of such principal payment by (ii) the sum of all such principal payments.

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

“ beneficial ownership ” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act, and “ beneficial owner ” has a corresponding meaning.
 
“ Board of Directors ” means:

(1)              with respect to the Issuer or any Subsidiary, its board of directors or any duly authorized committee thereof;

(2)              with respect to a corporation, the board of directors of such corporation or any duly authorized committee thereof; and

(3)              with respect to any other entity, the board of directors or similar body of the general partner or managers of such entity or any duly authorized committee thereof.

“ Business Day ” means each day that is not a Legal Holiday.
 
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“ Capital Stock ” means any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation) and any and all warrants or options to purchase any of the foregoing, but excluding any debt securities convertible or exchangeable into such equity.

“ Change of Control ” means the occurrence of any of the following after the Issue Date:

(1)              the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the property and assets of the Issuer and its Subsidiaries, taken as a whole, to any “person” (as that term is used in Section 13(d)(3) of the Exchange Act), other than the Issuer or one of its wholly-owned Subsidiaries;

(2)              the adoption of a plan relating to the liquidation or dissolution of the Issuer;

(3)              the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any “person” (as that term is used in Section 13(d)(3) of the Exchange Act) becomes the beneficial owner, directly or indirectly, of more than 50% of the Issuer’s Voting Stock, measured by voting power rather than number of shares; or

(4)              the merger or consolidation of the Issuer with or into another Person or the merger of another Person with or into the Issuer or the merger of any Person with or into a Subsidiary of the Issuer, unless the holders of a majority of the aggregate voting power of the Voting Stock of the Issuer, immediately prior to such transaction, hold securities of the surviving or transferee Person that represent, immediately after such transaction, at least a majority of the aggregate voting power of the Voting Stock of the surviving or transferee Person.

Notwithstanding the foregoing, the Transactions shall not constitute a Change of Control.

Notwithstanding the foregoing, a transaction effected to create a holding company for the Issuer will not be deemed to involve a Change of Control if (a) pursuant to such transaction the Issuer becomes a wholly-owned subsidiary of such holding company and (b) the holders of the Voting Stock of such holding company immediately following such transaction are the same as the holders of the Issuer’s Voting Stock immediately prior to such transaction.

“ Commission ” means the Securities and Exchange Commission.

“ Consolidated Cost Savings ” means, for any period, those synergies, operating expense reductions and cost-savings of the Issuer and its Restricted Subsidiaries that are reasonably identifiable, factually supportable and projected by the Issuer in good faith to be realized following the Issue Date as a result of restructurings, reorganizations, divestitures, cost savings initiatives, production rationalizations and other similar initiatives (collectively, “ Initiatives ”) (calculated on a pro forma basis as if such synergies, operating expense reductions and cost-savings had been realized on the first day of such period, and net of the amount of actual benefits realized during such period from such Initiatives to the extent already included in Consolidated Net Income for such period); provided that (i) no synergies, operating expense reductions or cost-savings shall be added to Consolidated EBITDA pursuant to clause (e) thereof to the extent duplicative of any expenses or charges otherwise added to (or excluded from) Consolidated EBITDA, whether through a pro forma adjustment or otherwise, for such period and (ii) projected amounts (and not yet realized) (x) may be added (the date on which such amounts are added, the “ Initiative Commencement Date ”) once actions in respect of such Initiative have been taken or are expected to be taken (in the good faith determination of the Issuer) within 12 months and (y) may no longer be added back in calculating Consolidated EBITDA pursuant to clause (e) thereof to the extent occurring more than six full fiscal quarters after the Initiative Commencement Date.
 
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“ Consolidated Debt Ratio ” means, as of any date of determination, the ratio of (1) the aggregate amount of Debt of the Issuer and its Restricted Subsidiaries then outstanding as of such date of determination to (2) Consolidated EBITDA for the most recent four consecutive fiscal quarters for which internal financial statements of the Issuer are available, in each case with pro forma and other adjustments to each of Debt and Consolidated EBITDA to reflect any incurrences or repayments of Debt and any acquisitions or dispositions of businesses or assets since the beginning of such four consecutive fiscal quarter period (which pro forma and other adjustments will be determined in good faith by a  responsible financial or accounting officer of the Issuer and shall not be required to be made in accordance with Regulation S-X promulgated by the Commission).

“ Consolidated EBITDA ” means, for any period, Consolidated Net Income for such period (adjusted to exclude all extraordinary or unusual items and any gains or losses on sales of assets outside the ordinary course of business) plus, without duplication and (except with respect to synergies included in Consolidated Cost Savings) to the extent deducted in calculating such Consolidated Net Income for such period, the sum of (a) income tax expense, (b) interest expense, amortization or writeoff of debt discount with respect to Debt, (c) depreciation and amortization expense, (d) amortization of intangibles (including, but not limited to, goodwill) and organization costs, (e) Consolidated Cost Savings; provided that with respect to any period, the aggregate amount added back in the calculation of Consolidated EBITDA for such period pursuant to this clause (e) and clause (f) below shall not exceed 20% of Consolidated EBITDA (in each case calculated prior to giving effect to any add-backs pursuant to this clause (e) and clause (f) below), (f) costs and expenses incurred in connection with the implementation of Initiatives; provided that with respect to any period, the aggregate amount added back in the calculation of Consolidated EBITDA for such period pursuant to this clause (f) and clause (e) above shall not exceed 20% of Consolidated EBITDA (in each case calculated prior to giving effect to any add-backs pursuant to this clause (f) and clause (e) above), (g) the sum (without duplication) of all non-recurring fees, costs and expenses incurred by the Issuer and its Restricted Subsidiaries, whether before, on or within six months after the Merger Closing Date, in connection with the Transactions during such period; provided that the aggregate amount added back in the calculation of Consolidated EBITDA pursuant to this clause (g) shall not exceed $100,000,000, (h) all payments triggered in respect of the Issuer’s non-qualified deferred compensation and post-retirement benefit plans in connection with the Transactions during such period, (i) any other non-cash charges and (j) adjustments and add-backs of the nature set forth in the Offering Memorandum under the section entitled “Summary—Summary historical and pro forma financial data”, minus, (x) any cash payments made during such period in respect of items described in clause (i) above subsequent to the fiscal quarter in which the relevant non-cash charge was reflected as a charge in the statement of Consolidated Net Income and (y) to the extent included in calculating such Consolidated Net Income for such period, any non-cash income (other than amounts accrued in the ordinary course of business under accrual-based revenue recognition procedures in accordance with GAAP).
 
“ Consolidated Fixed Charge Coverage Ratio ” means, with respect to any Person, the ratio of Consolidated EBITDA of such Person during the four full fiscal quarters for which financial statements are available (the “ Four Quarter Period ”) ending prior to the date of the transaction giving rise to the need to calculate the Consolidated Fixed Charge Coverage Ratio (the “ Transaction Date ”) to Consolidated Fixed Charges of such Person for the Four Quarter Period. In addition to and without limitation of the foregoing, for purposes of this definition, “Consolidated EBITDA” and “Consolidated Fixed Charges” shall be calculated after giving effect on a pro forma basis for the period of such calculation to:
 
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(i)              the incurrence of any Debt of such Person or any of its Restricted Subsidiaries (and the application of the proceeds thereof) and the repayment of other Debt, other than the incurrence or repayment of Debt in the ordinary course of business for working capital purposes pursuant to working capital facilities, occurring during the Four Quarter Period or at any time subsequent to the last day of the Four Quarter Period and on or prior to the Transaction Date, as if such incurrence or repayment, as the case may be (and the application of the proceeds thereof), occurred on the first day of the Four Quarter Period; and

(ii)              any Asset Sales or Asset Acquisitions (including, without limitation, any Asset Acquisition giving rise to the need to make such calculation as a result of such Person or one of its Restricted Subsidiaries (including any Person who becomes a Restricted Subsidiary as a result of the Asset Acquisition) incurring, assuming or otherwise being liable for Acquired Debt and also including any Consolidated EBITDA attributable to the assets which are the subject of the Asset Acquisition) occurring during the Four Quarter Period or at any time subsequent to the last day of the Four Quarter Period and on or prior to the Transaction Date, as if such Asset Sale or Asset Acquisition (including the incurrence, assumption or liability for any such Acquired Debt) occurred on the first day of the Four Quarter Period.

For purposes of this definition, pro forma calculations shall be made in good faith by a responsible financial or accounting officer of the Issuer and shall not be required to be made in accordance with Regulation S-X promulgated under the Securities Act, and such pro forma calculations may also include operating expense reductions for such period resulting from the Asset Sale or Asset Acquisition (as determined in good faith by senior management of the Issuer) for which pro forma effect is being given (A) that have been realized or (B) for which steps have been taken or are reasonably expected to be taken within six months of the date of such transaction and are supportable and quantifiable and, in each case, including, but not limited to (a) reduction in personnel expenses, (b) reduction of costs related to administrative functions, (c) reduction of costs related to leased or owned properties and (d) reductions from the consolidation of operations and streamlining of corporate overhead.

Furthermore, in calculating “Consolidated Fixed Charges” for purposes of determining the denominator (but not the numerator) of this “Consolidated Fixed Charge Coverage Ratio”:

(i)              interest on outstanding Debt determined on a fluctuating basis as of the Transaction Date and which will continue to be so determined thereafter shall be deemed to have accrued at a fixed rate per annum equal to the rate of interest on such Debt in effect on the Transaction Date;

(ii)              if interest on any Debt actually incurred on the Transaction Date may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rates, then the interest rate in effect on the Transaction Date will be deemed to have been in effect during the Four Quarter Period; and

(iii)              notwithstanding clause (i) or (ii) above, interest on Debt determined on a fluctuating basis, to the extent such interest is covered by agreements relating to Hedging Obligations, shall be deemed to accrue at the rate per annum resulting after giving effect to the operation of such agreements.
 
“ Consolidated Fixed Charges ” means, with respect to any Person for any period, the sum of, without duplication, the amounts for such period of:

(1)              Consolidated Interest Expense; and
 
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(2)              the product of (a) all dividends and other distributions accrued during such period in respect of Redeemable Capital Interests and preferred stock of such Person and its Restricted Subsidiaries (other than dividends paid in Qualified Capital Interests), times (b) a fraction, the numerator of which is one and the denominator of which is one minus the then current combined federal, state and local statutory tax rate of such Person, expressed as a decimal.

“ Consolidated Interest Expense ” means, with respect to any Person for any period,  without duplication, the sum of:

(1)              the total interest expense of such Person and its Restricted Subsidiaries for such period as determined on a consolidated basis in accordance with GAAP, including, without limitation:

(a)              any amortization of debt discount;

(b)              the net cost under any Hedging Obligation or Swap Contract in respect of interest rate protection (including any amortization of discounts);

(c)              the interest portion of any deferred payment obligation;

(d)              all commissions, discounts and other fees and charges owed with respect to financing activities or similar activities; and

(e)              all accrued interest;

(2)              the interest component of capital lease obligations paid, accrued and/or scheduled to be paid or accrued by such Person and its Restricted Subsidiaries during such period determined on a consolidated basis in accordance with GAAP; and

(3)              all capitalized interest of such Person and its Restricted Subsidiaries for such period; less interest income of such Person and its Restricted Subsidiaries for such period; provided , however , that Consolidated Interest Expense will exclude (i) the amortization or write-off of debt issuance costs and deferred financing fees, commissions, fees and expenses and (ii) any expensing of interim loan commitment and other financing fees.

“ Consolidated Net Income ” means, for any period, the consolidated net income (or loss) of the Issuer and its Restricted Subsidiaries, determined on a consolidated basis in accordance with GAAP; provided that there shall be excluded (a) the income (or deficit) of any Person accrued prior to the date it becomes a Restricted Subsidiary of the Issuer or is merged into or consolidated with the Issuer or any of its Restricted Subsidiaries, (b) the income (or deficit) of any Person (other than a Restricted Subsidiary of the Issuer) in which the Issuer or any of its Restricted Subsidiaries has an ownership interest, except to the extent that any such income is actually received by the Issuer or such Subsidiary in the form of dividends or similar distributions and (c) solely for the purposes of Section 4.05, the undistributed earnings of any Restricted Subsidiary of the Issuer to the extent that the declaration or payment of dividends or similar distributions by such Restricted Subsidiary is not at the time permitted by the terms of any contractual obligation or any law applicable to such Restricted Subsidiary.

“ Consolidated Net Tangible Assets ” means the total amount of the Issuer’s consolidated assets after deducting therefrom (i) all current liabilities, excluding any thereof which are by their terms extendible or renewable at the option of the obligor thereon to a time more than 12 months after the time as of which the amount thereof is being computed and (ii) unamortized Debt discount and expense, goodwill, trademarks, brand names, patents and other intangible assets, all as shown on the Issuer’s latest audited consolidated financial statements at the time of the determination.
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“ Corporate Trust Office ” shall be at the address of the Trustee specified in Section 12.02 or such other address as to which the Trustee may give notice to the Holders and the Issuer.

“ Credit Agreement ” means the credit agreements, dated as of June 23, 2015 (as amended, supplemented or otherwise modified from time to time), among the Issuer or Olin Corporation, as applicable, the other borrowers party thereto, Wells Fargo Bank, National Association, as administrative agent, and the other agents and lenders named therein, providing for (i) a revolving credit facility, which, upon the consummation of the Merger on the Merger Closing Date, shall provide for borrowings by Olin Corporation and Olin Canada ULC and will be guaranteed by the Issuer and (ii) a term loan facility, which shall provide for borrowings by the Issuer and, upon the consummation of the Merger on the Merger Closing Date, will be guaranteed by Olin Corporation, together with all related notes, letters of credit, guarantees, and any other related agreements and instruments executed and delivered in connection therewith, in each case as amended, modified, supplemented, restated, refinanced, refunded or replaced in whole or in part from time to time including by or pursuant to any agreement or instrument that exchanges, extends, refinances, renews, replaces, substitutes or otherwise restructures the maturity of any indebtedness thereunder, or increases the amount of available borrowings thereunder, or adds Subsidiaries of Olin Corporation as additional borrowers or guarantors thereunder, in each case with respect to such agreement or any successor or replacement agreement and whether by the same or any other agent, lender, group of lenders, purchasers, institutional investors or debt holders.
 
“ Custodian ” means the Trustee, as custodian with respect to the Notes in global form, or any successor entity thereto.

“ Debt ” means any notes, bonds, debentures, loans or other similar evidences of indebtedness for money borrowed, issued, assumed or guaranteed by the Issuer or any Restricted Subsidiary.

“ Debt Facility ” means one or more debt facilities (including, without limitation, the Credit Agreement and the Sumitomo Credit Agreement) or commercial paper facilities with banks or other institutional lenders providing for revolving credit loans, term loans, receivables financing (including through the sale of receivables to such lenders or to special purpose entities formed to borrow from such lenders against such receivables) or letters of credit or issuances of debt securities evidenced by notes, debentures, bonds or similar instruments, in each case, as amended, restated, modified, renewed, refunded, replaced or refinanced (including by means of sales of debt securities) in whole or in part from time to time (and whether or not with the original administrative agent, lenders or trustee or another administrative agent or agents, other lenders or trustee and whether provided under the original Credit Agreement and the original Sumitomo Credit Agreement or any other credit or other agreement or indenture).

“ Default ” means any event that is, or after notice or passage of time or both, would be, an Event of Default.
 
“ Definitive Note ” means a certificated Initial Note, Additional Note or Exchange Note (bearing the Restricted Notes Legend if the transfer of such Note is restricted by applicable law) in physical form that does not include the Global Notes Legend.
 
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“ Depositary ” means, with respect to the Notes issuable or issued in whole or in part in global form, the Person specified in Section 2.03 as the Depositary with respect to the Notes, and any and all successors thereto appointed as Depositary hereunder and having become such pursuant to the applicable provision of this Indenture.

“ Designated Non-cash Consideration ” means the fair market value as determined in good faith by the Issuer of non-cash consideration received by the Issuer or a Restricted Subsidiary in connection with an Asset Sale that is so designated as Designated Non-cash Consideration pursuant to an Officers’ Certificate, setting forth the basis of such valuation less the amount of cash or Eligible Cash Equivalents received in connection with a subsequent sale of or collection on such Designated Non-cash Consideration.

“ DTC ” means The Depository Trust Company.

“ Eligible Bank ” means a bank or trust company that (i) is licensed, chartered or organized and existing under the laws of the United States of America, or any state, territory, province or possession thereof, (ii) as of the time of the making or acquisition of an Investment in such bank or trust company, has combined capital and surplus in excess of $500.0 million and (iii) the senior Debt of which is rated at least “A-2” by Moody’s or at least “A” by S&P.

“ Eligible Cash Equivalents ” means any of the following Investments: (i) securities issued or directly and fully guaranteed or insured by the United States or any agency or instrumentality thereof ( provided that the full faith and credit of the United States is pledged in support thereof) maturing not more than one year after the date of acquisition; (ii) time deposits in and certificates of deposit of any Eligible Bank, provided that such Investments have a maturity date not more than two years after date of acquisition and that the Average Life of all such Investments is one year or less from the respective dates of acquisition; (iii) repurchase obligations with a term of not more than 180 days for underlying securities of the types described in clause (i) above entered into with any Eligible Bank; (iv) direct obligations issued by any state of the United States or any political subdivision or public instrumentality thereof, provided that such Investments mature, or are subject to tender at the option of the holder thereof, within 365 days after the date of acquisition and, at the time of acquisition, have a rating of at least A from S&P or A-2 from Moody’s (or an equivalent rating by any other nationally recognized rating agency); (v) commercial paper of any Person other than an affiliate of the Issuer and other than structured investment vehicles, provided that such Investments have one of the two highest ratings obtainable from either S&P or Moody’s and mature within 180 days after the date of acquisition; (vi) overnight and demand deposits in and bankers’ acceptances of any Eligible Bank and demand deposits in any bank or trust company to the extent insured by the Federal Deposit Insurance Corporation against the Bank Insurance Fund; (vii) money market funds 95% of the assets of which comprise Investments of the types described in clauses (i) through (vi); and (viii) instruments equivalent to those referred to in clauses (i) through (vi) above or funds equivalent to those referred to in clause (vii) above denominated in U.S. dollars, Euros or any other foreign currency comparable in credit quality and tender to those referred to in such clauses and customarily used by corporations for cash management purposes in jurisdictions outside the United States to the extent reasonably required in connection with any business conducted by any Restricted Subsidiary organized in such jurisdiction, all as determined in good faith by the Issuer.

“ Exchange Act ” means the Securities Exchange Act of 1934, as amended.

“ Exchange Notes ” means notes issued in a registered exchange offer pursuant to the Registration Rights Agreement.

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

“ Excluded Contributions ” means the net cash proceeds received by the Issuer after the Issue Date from:

(1) contributions to its common equity capital, and

(2) the sale (other than to a Restricted Subsidiary of the Issuer or to any Issuer management equity plan or stock option plan or any other management or employee benefit plan or agreement) of Capital Stock (other than Redeemable Capital Interests and preferred stock) of the Issuer;

provided, however that such net cash proceeds will be designated by the Issuer as “Excluded Contributions” in an Officers’ Certificate delivered to the Trustee and the net cash proceeds so designated will be excluded from the calculation set forth in Section 4.05(a)(iii).

“ Foreign Restricted Subsidiary ” means any Restricted Subsidiary other than a Restricted Subsidiary incorporated or otherwise organized or existing under the laws of the United States, any state thereof or any territory or possession of the United States.

“ GAAP ” means generally accepted accounting principles in the United States as in effect as of the Issue Date, including those set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as approved by a significant segment of the accounting profession.
 
“ Government Securities ” means securities that are (1) direct obligations of the United States for the timely payment of which its full faith and credit is pledged or (2) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States the timely payment of which is unconditionally guaranteed as a full faith and credit obligation of the United States, which, in either case, are not callable or redeemable at the option of the issuer thereof, and shall also include a depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act), as custodian with respect to any such Government Securities or a specific payment of principal of or interest on any such Government Securities held by such custodian for the account of the holder of such depositary receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the Government Securities or the specific payment of principal of or interest on the Government Securities evidenced by such depositary receipt.

“ guarantee ” means, as applied to any Debt of another Person, (i) a guarantee (other than by endorsement of negotiable instruments for collection in the normal course of business), direct or indirect, in any manner, of any part or all of such Debt, (ii) any direct or indirect obligation, contingent or otherwise, of a Person guaranteeing or having the effect of guaranteeing the Debt of any other Person in any manner and (iii) an agreement of a Person, direct or indirect, contingent or otherwise, the practical effect of which is to assure in any way the payment (or payment of damages in the event of non-payment) of all or any part of such Debt of another Person (and “guaranteed” and “guaranteeing” shall have meanings that correspond to the foregoing).

“ Guarantee ” means, with respect to the Notes, the Guarantee of a Subsidiary Guarantor pursuant to the terms of this Indenture.
 
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“ Hedging Obligations ” of any Person means the obligations of such Person pursuant to any interest rate agreement, currency agreement or commodity agreement.

“ Holder ” means a Person in whose name a Note is registered in the Registrar’s books.

“ incur ” means issue, create, assume, guarantee, incur or otherwise become liable for; provided, however , that any Debt or Capital Stock of a Person existing at the time such Person becomes a Restricted Subsidiary (whether by merger, consolidation, acquisition or otherwise) will be deemed to be incurred by such Restricted Subsidiary at the time it becomes a Restricted Subsidiary; and the terms “incurred” and “incurrence” have meanings correlative to the foregoing.
 
“ Indenture ” means this Indenture, as amended or supplemented from time to time.

“ Independent Financial Advisor ” means an accounting, appraisal, investment banking firm or consultant to Persons engaged in Permitted Businesses of nationally recognized standing that is, in the good faith judgment of the Issuer, qualified to perform the task for which it has been engaged.

“ Initial Notes ” has the meaning set forth in the recitals hereto.

“ interest ” with respect to the Notes means interest with respect thereto and Additional Interest, if any.

“ Interest Payment Date ” means, beginning with April 15, 2016, April 15 and October 15 of each year to Stated Maturity of the Notes.

“ Investment ” by any Person means any direct or indirect loan, advance, guarantee for the  benefit of (or other extension of credit) or capital contribution to (by means of any transfer of cash or other property or assets to another Person or any other payments for property or services for the account or use of another Person) another Person, including, without limitation, the following: (i) the purchase or acquisition of any Capital Stock or other evidence of beneficial ownership in another Person; (ii) the purchase, acquisition or guarantee of the Debt of another Person; and (iii) the purchase or acquisition of the business or assets of another Person substantially as an entirety but shall exclude: (a) accounts receivable and other extensions of trade credit in accordance with the Issuer’s customary practices; (b) the acquisition of property and assets from suppliers and other vendors in the normal course of business; and (c) prepaid expenses and workers’ compensation, utility, lease and similar deposits, in the normal course of business.

For purposes of Section 4.05 and the definition of “Unrestricted Subsidiary”:

(1)              “Investment” will include the portion (proportionate to the Issuer’s equity interest in the Restricted Subsidiary to be designated as an Unrestricted Subsidiary) of the fair market value as determined by the Issuer in good faith of the net assets of such Restricted Subsidiary of the Issuer at the time that such Restricted Subsidiary is designated an Unrestricted Subsidiary; provided , however , that upon a redesignation of such Subsidiary as a Restricted Subsidiary, the Issuer will be deemed to continue to have a permanent “Investment” in an Unrestricted Subsidiary in an amount (if positive) equal to (a) the Issuer’s “Investment” in such Subsidiary at the time of such redesignation less (b) the portion (proportionate to the Issuer’s equity interest in such Subsidiary) of the fair market value as determined by the Issuer in good faith of the net assets of such Subsidiary at the time that such Subsidiary is so re-designated as a Restricted Subsidiary; and

(2)              any property transferred to or from an Unrestricted Subsidiary will be valued at its fair market value at the time of such transfer, as determined by the Issuer in good faith.
 
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“ Investment Grade ” means a rating of Baa3 or better by Moody’s (or its equivalent under any successor rating categories of Moody’s) and BBB- or better by S&P (or its equivalent under any successor rating categories of S&P) (or, in each case, if such Rating Agency ceases to rate the Notes for reasons outside of the Issuer’s control, the equivalent investment grade credit rating from any Rating Agency selected by the Issuer as a replacement Rating Agency).
 
“ Issue Date ” means October 5, 2015.

“ Issuer ” means the party named as such in the first paragraph of this Indenture or any successor obligor to its obligations under this Indenture and the Notes pursuant to Article 5.
 
“ Legal Holiday ” means a Saturday, a Sunday or a day on which banking institutions are not required by law, regulation or executive order to be open in the State of New York.

“ Lien ” means, with respect to any property or other asset, any mortgage, deed of trust, deed to secure debt, pledge, hypothecation, assignment, deposit arrangement, security interest, lien (statutory or otherwise), charge, easement, encumbrance, preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever on or with respect to such property or other asset (including, without limitation, any conditional sale or other title retention agreement having substantially the same economic effect as any of the foregoing).

“ Material Capital Markets Debt ” means any Debt consisting of bonds, debentures, notes or other similar debt securities issued in (a) a public offering registered under the Securities Act, (b) a private placement to initial purchasers that is resold to institutional investors in accordance with Rule 144A or Regulation S of the Securities Act or (c) a placement to institutional investors, in each case in aggregate principal amount of $100.0 million or more. The term “Material Capital Markets Debt” shall not include any Debt under commercial bank facilities or similar Debt or any other type of Debt incurred in a manner not customarily viewed as a “securities offering.”

“ Merger ” means the merger of Blue Cube Acquisition Corp., a wholly-owned subsidiary of Olin Corporation, with and into the Issuer whereby the separate corporate existence of Blue Cube Acquisition Corp. will cease and the Issuer will continue as the surviving company and a wholly-owned subsidiary of Olin Corporation.

“ Merger Agreement ” means the Merger Agreement, dated as of March 26, 2015, among The Dow Chemical Company, the Issuer, Olin Corporation and Blue Cube Acquisition Corp., as amended or supplemented prior to the Merger Closing Date.

“ Merger Closing Date ” means the date the Merger is consummated.
 
“ Moody’s ” means Moody’s Investors Services, Inc. and any successor to its rating agency business.

“ Net Cash Proceeds ” means, with respect to Asset Sales of any Person, cash and Eligible Cash Equivalents received, net of: (i) all reasonable out-of-pocket costs and expenses of such Person incurred in connection with such a sale, including, without limitation, all legal, accounting, title and recording tax expenses, commissions and other fees and expenses incurred and all federal, state, foreign and local taxes arising in connection with such an Asset Sale that are paid or required to be accrued as a liability under GAAP by such Person; (ii) all payments made by such Person on any Debt that is secured by such properties or other assets in accordance with the terms of any Lien upon or with respect to such properties or other assets or that must, by the terms of such Lien or such Debt, or in order to obtain a necessary consent to such transaction or by applicable law, be repaid to any other Person (other than the Issuer or a Restricted Subsidiary thereof) in connection with such Asset Sale; and (iii) all contractually required distributions and other payments made to minority interest holders in Restricted Subsidiaries of such Person as a result of such transaction; provided, however , that: (a) in the event that any consideration for an Asset Sale (which would otherwise constitute Net Cash Proceeds) is required by (I) contract to be held in escrow pending determination of whether a purchase price adjustment will be made or (II) GAAP to be reserved against other liabilities in connection with such Asset Sale, such consideration (or any portion thereof) shall become Net Cash Proceeds only at such time as it is released to such Person from escrow or otherwise; and (b) any non-cash consideration received in connection with any transaction, which is subsequently converted to cash, shall become Net Cash Proceeds only at such time as it is so converted.
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“ Non-Guarantor Subsidiary ” means any Restricted Subsidiary that is not a Subsidiary
Guarantor.

 “ Notes ” means the Initial Notes and more particularly means any Note authenticated and delivered under this Indenture.  For all purposes of this Indenture, the term “ Notes ” shall also include any Additional Notes that may be issued under a supplemental indenture and Notes to be issued or authenticated upon transfer, replacement or exchange of Notes.

“ Offering Memorandum ” means the offering memorandum dated September 25, 2015 related to the offer and sale of the Notes.

“ Offer to Purchase ” means an Asset Sale Offer or a Change of Control Offer.

“ Officer ” means the Chairman of the Board, the Chief Executive Officer, the President, the Chief Financial Officer, any Executive Vice President, Senior Vice President or Vice President, the Treasurer or the Secretary of the Issuer or, in the event that the Issuer is a partnership or a limited liability company that has no such officers, a person duly authorized under applicable law by the general partner, managers, members or a similar body to act on behalf of the Issuer.

“ Officers’ Certificate ” means a certificate signed by two Officers of the Issuer.

“ 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 the Issuer.

“ Permitted Asset Swap ” means the concurrent purchase and sale or exchange of properties or assets (other than securities) that are used or useful in a Permitted Business or a combination of such assets and cash or Eligible Cash Equivalents between the Issuer or any of its Restricted Subsidiaries and another Person; provided, however that any cash and Eligible Cash Equivalents must be applied in accordance with Section 4.11.

“ Permitted Business ” means any business similar in nature to any business conducted by the Issuer and the Restricted Subsidiaries on the Issue Date and any business reasonably ancillary, incidental, complementary or related to, or a reasonable extension, development or expansion of, the business conducted by the Issuer and the Restricted Subsidiaries on the Issue Date, in each case, as determined in good faith by the Issuer.

“ Permitted Debt ” means
 
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(1) Debt incurred by the Issuer or any Subsidiary Guarantor pursuant to any Debt Facilities in an aggregate principal amount at any one time outstanding not to exceed (x) $2,880.0 million minus (y) any amount used to permanently repay such obligations (or permanently reduce commitments with respect thereto) pursuant to Section 4.11;

(2) Debt under (a) the Notes issued on the Issue Date and any Exchange Notes issued in exchange for such Notes and (b) the 2025 Notes issued on the Issue Date and any exchange notes issued in exchange for such notes;

(3) Guarantees of the Notes and any Exchange Notes issued in exchange for such Notes and guarantees of the 2025 Notes and any exchange notes issued in exchange for such notes;

(4) Debt of the Issuer or any Restricted Subsidiary outstanding on the Issue Date (other than Debt incurred pursuant to clauses (1), (2) or (3) above);

(5) guarantees incurred by the Issuer of Debt of a Restricted Subsidiary otherwise permitted to be incurred under this Indenture;

(6) guarantees by any Restricted Subsidiary of Debt of the Issuer or any other Restricted Subsidiary, including guarantees by any Restricted Subsidiary of Debt under the Credit Agreement and the Sumitomo Credit Agreement; provided, however, that (a) such Debt is permitted to be incurred under this Indenture and (b) if the Debt being guaranteed is subordinated in right of payment to the Notes, such guarantees are subordinated to the Notes to the same extent, if any, as the Debt being guaranteed;

(7) Debt incurred in respect of workers’ compensation claims and self-insurance obligations, and, for the avoidance of doubt, indemnity, bid, performance, warranty, release, appeal, surety and similar bonds, letters of credit for operating purposes and completion guarantees provided or incurred (including guarantees thereof) by the Issuer or a Restricted Subsidiary in the ordinary course of business;

(8) Debt under Swap Contracts and Hedging Obligations incurred in the ordinary course of business and not for speculative purposes;

(9) Debt owed by the Issuer to any Restricted Subsidiary, or by any Restricted Subsidiary to the Issuer or to any other Restricted Subsidiary, provided that if for any reason such Debt ceases to be held by the Issuer or a Restricted Subsidiary, as applicable, such Debt shall cease to be Permitted Debt under this clause (9) and shall be deemed incurred as Debt of the Issuer for purposes of this Indenture;

(10) Debt of the Issuer or a Subsidiary Guarantor pursuant to capital lease obligations, synthetic lease obligations and Purchase Money Debt and any Refinancing Debt that Refinances any Debt incurred pursuant to this clause (10); provided , however that the aggregate principal amount of all Debt incurred under this clause (10) and outstanding at any time may not exceed $100.0 million in the aggregate;

(11) Debt arising from agreements of the Issuer or a Restricted Subsidiary providing for indemnification, contribution, earnout, adjustment of purchase price or similar obligations, in each case, incurred or assumed in connection with the acquisition or disposition of any business, assets or Capital Stock of a Restricted Subsidiary otherwise permitted under this Indenture;
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(12) the issuance by any of the Issuer’s Restricted Subsidiaries to the Issuer or to any of its Restricted Subsidiaries of shares of Redeemable Capital Interests or preferred stock; provided , however , that:

(a) any subsequent issuance or transfer of Capital Stock that results in any such Redeemable Capital Interests being held by a Person other than the Issuer or a Restricted Subsidiary; and

(b) any sale or other transfer of any such Redeemable Capital Interests to a Person that is not either the Issuer or a Restricted Subsidiary;

shall be deemed, in each case, to constitute an issuance of such Redeemable Capital Interests by such Restricted Subsidiary that was not permitted by this clause (12);

(13) Debt 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 Debt is extinguished within five business days of incurrence;

(14) Debt of the Issuer or a Restricted Subsidiary not otherwise permitted pursuant to this definition, in an aggregate principal amount not to exceed $150.0 million at any time outstanding;

(15) Purchase Money Notes incurred by any Receivable Subsidiary that is a Restricted Subsidiary in a Qualified Receivables Transaction and Non-Recourse Receivable Subsidiary Indebtedness;  p rovided , however that the aggregate amounts incurred and outstanding under all Qualified Receivables Transactions shall not exceed $250.0 million;

(16) Debt of Foreign Restricted Subsidiaries in an aggregate principal amount not to exceed $50.0 million at any one time outstanding;

(17) (x) Debt of the Issuer or any Subsidiary Guarantor incurred or issued to finance an acquisition or (y) Acquired Debt; provided , however , that after giving pro forma effect to such acquisition, merger or consolidation, and the incurrence of such Debt (including pro forma application of the proceeds thereof), either:

(a) the Issuer would be permitted to incur at least $1.00 of additional Coverage Debt pursuant to Section 4.06(a);

(b) the Consolidated Fixed Charge Coverage Ratio of the Issuer and its Restricted Subsidiaries would not be lower than such ratio immediately prior to such acquisition, merger or consolidation; or

(c) such Debt constitutes Acquired Debt (other than Debt incurred in contemplation of the transaction or series of transactions pursuant to which such Person became a Restricted Subsidiary or was otherwise acquired by the Issuer or a Restricted Subsidiary); provided that the only obligors with respect to such Debt shall be those Persons who were obligors of such Debt prior to such acquisition, merger or consolidation; and

(18) Refinancing Debt that Refinances Coverage Debt or Debt incurred pursuant to clauses (2), (4), (17) or this clause (18) of this definition of “Permitted Debt.”
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“ Permitted Investments ” means:

(1)              Investments in existence on the Issue Date;

(2)              Investments required pursuant to any agreement or obligation of the Issuer or a Restricted Subsidiary, in effect on the Issue Date, to make such Investments;

(3)              Investments in cash and Eligible Cash Equivalents;

(4)              Investments in property and other assets, owned or used by the Issuer or any Restricted Subsidiary in the normal course of business;

(5)              Investments by the Issuer or any of its Restricted Subsidiaries in the Issuer or any Restricted Subsidiary;

(6)              Investments by the Issuer or any Restricted Subsidiary in a Person, if as a result of such Investment (A) such Person becomes a Restricted Subsidiary or (B) such Person is merged, consolidated or amalgamated with or into, or transfers or conveys substantially all of its assets to, or is liquidated or wound-up into, the Issuer or a Restricted Subsidiary;

(7)              Swap Contracts and Hedging Obligations;

(8)              receivables owing to the Issuer or any of its Restricted Subsidiaries and advances to suppliers, in each case if created, acquired or made in the ordinary course of business and payable or dischargeable in accordance with customary trade terms;

(9)              Investments received in settlement of obligations owed to the Issuer or any Restricted Subsidiary and as a result of bankruptcy or insolvency proceedings or upon the foreclosure or enforcement of any Lien in favor of the Issuer or any Restricted Subsidiary;

(10)              Investments by the Issuer or any Restricted Subsidiary not otherwise permitted under this definition, in an aggregate amount not to exceed the greater of (i) $250.0 million and (ii) 5% of Consolidated Net Tangible Assets at any one time outstanding;

(11)              loans and advances to officers, directors and employees of the Issuer and Restricted Subsidiaries in an aggregate amount not to exceed $10.0 million in the aggregate at any one time outstanding, for travel, entertainment, relocation and analogous ordinary business purposes;

(12)              Investments the payment for which consists solely of Capital Stock of the Issuer;

(13)              any Investment in any Person to the extent such Investment represents the non- cash portion of the consideration received in connection with an Asset Sale consummated in compliance with Section 4.11 or any other disposition of property not constituting an Asset Sale;

(14)              payroll, travel 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 and consistent with past practice;

(15)              guarantees by the Issuer or any Restricted Subsidiary of Debt of the Issuer or a Restricted Subsidiary (other than a Receivables Subsidiary) of Debt otherwise permitted by Section 4.06;
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(16)              any Investment by the Issuer or any Restricted Subsidiary in a Receivable Subsidiary or any Investment by a Receivable Subsidiary in any other Person in connection with a Qualified Receivables Transaction, so long as any Investment in a Receivable Subsidiary is in the form of a Purchase Money Note or an Investment in Capital Stock; and

(17)              other Investments in any Person that is a joint venture engaged in a Permitted Business (other than an Investment in an Unrestricted Subsidiary) having an aggregate fair market value as determined by the Issuer in good faith (measured on the date each such Investment was made and without giving effect to subsequent changes in value), when taken together with all other Investments made pursuant to this clause (q) since the Issue Date and existing at the time of the Investment, which is the subject of the determination, was made, not to exceed the greater of (i) $125 million and (ii) 2.5% of Consolidated Net Tangible Assets.

“ Person ” means any individual, corporation, limited liability company, partnership, joint venture, trust, unincorporated organization or government or any agency or political subdivision thereof.
 
“ Principal Property ” means any of the Issuer’s properties or plants or the properties or plants of any Restricted Subsidiary primarily used for the manufacture of products and located within the United States or its territories or possessions, except any such property or plant which the Board of Directors of the Issuer by resolution declares is not of material importance to the total business conducted by the Issuer and its Subsidiaries as an entirety.

“ Purchase Money Debt ” means Debt

(1)              incurred to finance the purchase or construction (including additions and improvements thereto) of any assets (other than Capital Stock) of such Person or any Restricted Subsidiary; and

(2)              that is secured by a Lien on such assets where the lender’s sole security is to the assets so purchased or constructed (or any facility which such assets constitute a part of); in either case, that does not exceed 100% of the cost.

“ Purchase Money Note ” means a promissory note of a Receivable Subsidiary issued to the Issuer or any Restricted Subsidiary, to pay all or a portion of the purchase price of receivables and assets related thereto described in the definition of “Qualified Receivables Transaction” that are purchased in connection with a Qualified Receivables Transaction. The repayment of a Purchase Money Note may be subordinated to the repayment of other liabilities of the Receivable Subsidiary on terms determined in good faith by the Issuer to be substantially consistent with market practice in connection with Qualified Receivables Transactions.

“ Qualified Capital Interests ” in any Person means a class of Capital Stock other than Redeemable Capital Interests.

“ Qualified Receivables Transaction ” means any transaction or series of transactions entered into by the Issuer or any of its Restricted Subsidiaries pursuant to which the Issuer or such Restricted Subsidiary transfers to (1) a Receivable Subsidiary (in the case of a transfer by the Issuer or any of its Restricted Subsidiaries) or (2) any other Person (in the case of a transfer by a Receivable Subsidiary), or grants a security interest in, any accounts receivable (whether now existing or arising in the future) of the Issuer or any of its Restricted Subsidiaries, and any assets related thereto, including, without limitation, all collateral securing such accounts receivable, all contracts and all guarantees or other obligations in respect of such accounts receivable, proceeds of such accounts receivable and other assets which are customarily transferred or in respect of which security interests are customarily granted in connection with an accounts receivable financing transaction; provided such transaction is on market terms as determined in good faith by the Issuer at the time the Issuer or such Restricted Subsidiary enters into such transaction.
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“ Rating Agency ” means (1) each of Moody’s and S&P and (2) if either of Moody’s or S&P ceases to rate the Notes or fails to make a rating of the Notes publicly available for reasons outside of the Issuer’s control, a “nationally recognized statistical rating organization” within the meaning of Section 3(a)(62) under the Exchange Act selected by the Issuer as a replacement agency for Moody’s or S&P, or both, as the case may be.

“ Receivable Subsidiary ” means a Subsidiary of the Issuer:

(1)              that is formed solely for the purpose of, and that engages in no activities other than activities in connection with, financing accounts receivable of the Issuer and/or its Restricted Subsidiaries, including providing letters of credit on behalf of or for the benefit of the Issuer and/or its Restricted Subsidiaries;

(2)              that is designated by the Board of Directors of the Issuer as a Receivable Subsidiary pursuant to an Officers’ Certificate that is delivered to the Trustee;

(3)              that is either (a) a Restricted Subsidiary or (b) an Unrestricted Subsidiary designated in accordance with the definition of “Unrestricted Subsidiary”;

(4)              no portion of the Debt or any other obligation (contingent or otherwise) of which (a) is at any time guaranteed by the Issuer or any Restricted Subsidiary (excluding guarantees of obligations (other than any guarantee of Debt) pursuant to Standard Securitization Undertakings), (b) is at any time recourse to or obligates the Issuer or any Restricted Subsidiary in any way, other than pursuant to Standard Securitization Undertakings or (c) subjects any asset of the Issuer or any other Restricted Subsidiary of the Issuer, directly or indirectly, contingently or otherwise, to the satisfaction thereof, other than pursuant to Standard Securitization Undertakings (such Debt, “Non-Recourse Receivable Subsidiary Indebtedness”);

(5)              with which neither the Issuer nor any Restricted Subsidiary has any material contract, agreement, arrangement or understanding other than (a) contracts, agreements, arrangements and understandings entered into in connection with a Qualified Receivables Transaction, (b) fees payable in the ordinary course of business in connection with servicing accounts receivable in connection with such a Qualified Receivables Transaction as determined in good faith by the Board of Directors of the Issuer and (c) any Purchase Money Note issued by such Receivable Subsidiary to the Issuer or a Restricted Subsidiary or any letters of credit provided by such Receivable Subsidiary on behalf of or for the benefit of the Issuer or any Restricted Subsidiary; and

(6)              with respect to which neither the Issuer nor any other Restricted Subsidiary has any obligation (a) to subscribe for additional shares of Capital Stock therein or make any additional capital contribution or similar payment or transfer thereto except in connection with a Qualified Receivables Transaction or (b) to maintain or preserve the solvency or any balance sheet term, financial condition, level of income or results of operations thereof.
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“ Record Date ” for the interest or Additional Interest, if any, payable on any applicable Interest Payment Date means the April 1 or October 1 (whether or not a Business Day) next preceding such Interest Payment Date.

“ Redeemable Capital Interests ” in any Person means any equity security of such Person that by its terms (or by terms of any security into which it is convertible or for which it is exchangeable), or otherwise (including the passage of time or the happening of an event), is required to be redeemed, is redeemable at the option of the holder thereof in whole or in part (including by operation of a sinking fund), or is convertible or exchangeable for Debt of such Person at the option of the holder thereof, in whole or in part, at any time prior to the Stated Maturity of the Notes; provided that only the portion of such equity security which is required to be redeemed, is so convertible or exchangeable or is so redeemable at the option of the holder thereof before such date will be deemed to be Redeemable Capital Interests. Notwithstanding the preceding sentence, any equity security that would constitute Redeemable Capital Interests solely because the holders of the equity security have the right to require the Issuer to repurchase such equity security upon the occurrence of a Change of Control or an Asset Sale will not constitute Redeemable Capital Interests if the terms of such equity security provide that the Issuer may not repurchase or redeem any such equity security pursuant to such provisions unless such repurchase or redemption complies with Section 4.05. The amount of Redeemable Capital Interests deemed to be outstanding at any time for purposes of this Indenture will be the maximum amount that the Issuer and its Restricted Subsidiaries may become obligated to pay upon the maturity of, or pursuant to any mandatory redemption provisions of, such Redeemable Capital Interests or portion thereof, exclusive of accrued dividends.

“ Refinance ” means, in respect of any Debt, to refinance, extend, renew, refund, repay, prepay, purchase, redeem, defease or retire, or to issue other Debt in exchange or replacement for, such Debt. “Refinanced” and “Refinancing” shall have correlative meanings.

“ Refinancing Debt ” means Debt that Refinances any Debt incurred by the Issuer or any Restricted Subsidiary pursuant to the terms of this Indenture, whether involving the same or any other lender or creditor or group of lenders or creditors, but only to the extent that

(1)              if the Debt being refinanced is subordinated in right of payment to the Notes, the Refinancing Debt is subordinated to the Notes to at least the same extent as the Debt being Refinanced if such Debt was subordinated to the Notes,

(2)              the Refinancing Debt is scheduled to mature either (a) no earlier than the Debt being Refinanced or (b) at least 91 days after the maturity date of the Notes,

(3)              the Refinancing Debt has an Average Life at the time such Refinancing Debt is incurred that is equal to or greater than the Average Life of the Debt being Refinanced,
 
(4)        such Refinancing Debt is in 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 fees and expenses, including any premium and defeasance costs) with respect to the Debt being Refinanced, and       
 
(5)              Refinancing Debt shall not include Debt of a Non-Guarantor Subsidiary that refinances Debt of the Issuer or a Subsidiary Guarantor.
 
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“ Registration Rights Agreement ” means that certain Registration Rights Agreement to be dated as of the Issue Date among the Issuer, Olin Corporation and the initial purchasers set forth therein as applicable to the Notes, and, with respect to any Additional Notes, one or more substantially similar registration rights agreements among the Issuer, Olin Corporation and the other parties thereto, as such agreements may be amended from time to time.
 
“ Responsible Officer ” means, when used with respect to the Trustee, any officer within the corporate trust department of the Trustee having direct responsibility for the administration of this Indenture, or any other officer to whom any corporate trust matter is referred because of such officer’s knowledge of and familiarity with the particular subject.
 
“ Restricted Payment ” is defined to mean any of the following:

(1) any dividend or other distribution declared and paid on the Capital Stock in the Issuer or on the Capital Stock in any Restricted Subsidiary of the Issuer that are held by, or declared and paid to, any Person other than the Issuer or a Restricted Subsidiary of the Issuer (other than (i) dividends, distributions or payments made solely in Qualified Capital Interests in the Issuer and (ii) dividends or distributions payable to the Issuer or a Restricted Subsidiary of the Issuer or to other holders of Capital Stock of a Restricted Subsidiary on a pro rata basis);

(2) any payment (including, without limitation, in connection with a merger, consolidation or amalgamation) made by the Issuer or any of its Restricted Subsidiaries to purchase, redeem, acquire or retire any Capital Stock in the Issuer (including the conversion into, or exchange for, Debt, of any Capital Stock) other than any such Capital Stock owned by the Issuer or any Restricted Subsidiary (other than a payment made solely in Qualified Capital Interests in the Issuer);

(3) any payment made by the Issuer or any of its Restricted Subsidiaries (other than a payment made solely in Qualified Capital Interests in the Issuer) to redeem, repurchase, defease (including an in substance or legal defeasance) or otherwise acquire or retire for value (including pursuant to mandatory repurchase covenants), prior to any scheduled maturity, scheduled sinking fund or mandatory redemption payment, Debt of the Issuer or any Subsidiary Guarantor that is subordinate in right of payment to the Notes or Guarantees (excluding any Debt owed to the Issuer or any Restricted Subsidiary); except payments of principal and interest in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, within one year of the due date thereof;

(4) any Investment by the Issuer or a Restricted Subsidiary in any Person, other than a Permitted Investment; and

(5) any designation of a Restricted Subsidiary as an Unrestricted Subsidiary.

“ Restricted Subsidiary ” means any Subsidiary of the Issuer other than an Unrestricted Subsidiary.

 “ S&P ” means Standard & Poor’s Ratings Services, a Standard & Poor’s Financial Services LLC business, and any successor to its rating agency business.
 
“ Securities Act ” means the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder.
 
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“ Separation Agreement ” means the Separation Agreement, dated as of March 26, 2015, between The Dow Chemical Company and the Issuer, as amended or supplemented prior to the Merger Closing Date.
 
“ Shelf Registration Statement ” means the Shelf Registration Statement as defined in the Registration Rights Agreement.

“ Significant Subsidiary ” means any Restricted Subsidiary of the Issuer that constitutes a “significant subsidiary” within the meaning set forth in Rule 1-02 of Regulation S-X promulgated by the Commission.

“ Standard Securitization Undertakings ” means representations, warranties, covenants and indemnities entered into by the Issuer or any Restricted Subsidiary which are reasonably customary in an accounts receivable securitization transaction as determined in good faith by the Issuer, including guarantees by the Issuer or any Restricted Subsidiary of any of the foregoing obligations of the Issuer or a Restricted Subsidiary.

“ Stated Maturity, ” when used with respect to (i) any Note or any installment of interest thereon, means the date specified in such Note as the fixed date on which the principal amount of such Note or such installment of interest is due and payable and (ii) any other indebtedness or any installment of interest thereon, means the date specified in the instrument governing such indebtedness as the fixed date on which the principal of such indebtedness or such installment of interest is due and payable.

“ Subsidiary ” of any Person means any corporation, association or other business entity of which more than 50%, by number of votes, of the Voting Stock is at the time directly or indirectly owned by such Person.  Unless otherwise specified herein, each reference to a Subsidiary will refer to a Subsidiary of the Issuer.

“ Subsidiary Guarantor ” means each Restricted Subsidiary of the Issuer that executes a supplemental indenture, including in the form set forth in Exhibit C hereto, providing its Guarantee pursuant to the terms of this Indenture after the Issue Date.

“ Sumitomo Credit Agreement ” means the credit agreement, dated as of August 25, 2015 (as amended, supplemented or otherwise modified from time to time), among the Issuer, Olin Corporation and the agents and lenders named therein, providing for a term loan facility, which shall provide for borrowings by Olin Corporation, together with all related notes, letters of credit, guarantees, and any other related agreements and instruments executed and delivered in connection therewith, in each case as amended, modified, supplemented, restated, refinanced, refunded or replaced in whole or in part from time to time including by or pursuant to any agreement or instrument that exchanges, extends, refinances, renews, replaces, substitutes or otherwise restructures the maturity of any indebtedness thereunder, or increases the amount of available borrowings thereunder, or adds Subsidiaries of Olin Corporation as additional borrowers or guarantors thereunder, in each case with respect to such agreement or any successor or replacement agreement and whether by the same or any other agent, lender, group of lenders, purchasers, institutional investors or debt holders.

“ Swap Contract ” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including, without limitation, any fuel price caps and fuel price collar or floor agreements and similar agreements or arrangements designed to protect against or manage fluctuations in fuel prices and any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “ Master Agreement ”), including any such obligations or liabilities under any Master Agreement.
 
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“ Transactions ” shall have the definition set forth in the Offering Memorandum.

“ Transfer Restricted Notes ” means Definitive Notes and any other Notes that bear or are required to bear the Restricted Notes Legend.

“ Trust Indenture Act ” means the Trust Indenture Act of 1939, as amended.

“ Trustee ” means U.S. Bank National Association, as trustee, until a successor replaces it in accordance with the applicable provisions of this Indenture and thereafter means the successor serving hereunder.
 
“ Unrestricted Subsidiary ” means:

(1)              any direct or indirect Subsidiary of the Issuer which at the time of determination is an Unrestricted Subsidiary (as designated by the Board of Directors of the Issuer, as provided below) and

(2)              any Subsidiary of an Unrestricted Subsidiary.

The Board of Directors of the Issuer may designate any direct or indirect Subsidiary of the Issuer (including any existing Subsidiary and any newly-acquired or newly-formed direct or indirect Subsidiary) to be an Unrestricted Subsidiary unless such Subsidiary or any of its Subsidiaries owns any Capital Stock or Debt of, or owns or holds any Lien on, any property of, the Issuer or any  Subsidiary of the Issuer (other than any Subsidiary of the Subsidiary to be so designated); provided that

(a)              any Unrestricted Subsidiary must be an entity of which the Capital Stock entitled to cast at least a majority of the votes that may be cast by all Capital Stock having ordinary voting power for the election of directors or other governing body are owned, directly or indirectly, by the Issuer,

(b)              such designation complies with Section 4.05 and

(c)              each of

(1)              the Subsidiary to be so designated and

(2)              its Subsidiaries

has not at the time of designation, and does not thereafter, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable with respect to any Debt pursuant to which the lender has recourse to any of the assets of the Issuer or any Restricted Subsidiary.
 
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The Board of Directors of the Issuer may designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that immediately after giving effect to such designation no Default or Event of Default shall have occurred and be continuing and either:

(1)              the Issuer could incur at least $1.00 of additional Debt pursuant to the Consolidated Fixed Charge Coverage Ratio test described under Section 4.06 or

(2)              the Consolidated Fixed Charge Coverage Ratio for the Issuer and the Restricted Subsidiaries on a consolidated basis would be greater than or equal to such ratio for the Issuer and the Restricted Subsidiaries on a consolidated basis immediately prior to such designation, in each case on a pro forma basis taking into account such designation.

Any such designation by the Board of Directors of the Issuer shall be notified by the Issuer to the Trustee by promptly filing with the Trustee a copy of a resolution of the board of directors of the Issuer giving effect to such designation and an Officers’ Certificate certifying that such designation complied with the foregoing provisions.

“ 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 (or Persons performing similar functions).

Section 1.02                Other Definitions .
 
Term
 
 
Defined in Section
 
“ Agent Members ”   
 
2.1(c) of Appendix A
“ Applicable Procedures ”   
 
1.1(a) of Appendix A
“ Asset Sale Offer ”   
 
4.11(c)
“ Asset Sale Offer Amount ”   
 
3.09(b)
“ Asset Sale Offer Period ”   
 
3.09(b)
“ Asset Sale Purchase Date ”   
 
3.09(b)
“ Authentication Order ”   
 
2.02(c)
“ Change of Control Offer ”   
 
4.10(a)
“ Change of Control Payment ”   
 
4.10(a)
“ Change of Control Payment Date ”   
 
4.10(a)
“ Clearstream ”   
 
1.1(a) of Appendix A
“ Covenant Defeasance ”   
 
8.03
“ Coverage Debt ”   
 
4.06(a)
“ Defeasance ”   
 
8.02(a)
“ Definitive Notes Legend ”   
 
2.2(e) of Appendix A
“ Discharge ”   
 
10.01(a)
“ Distribution Compliance Period ”   
 
1.1(a) of Appendix A
“ ERISA Legend ”   
 
2.2(e) of Appendix A
“ Euroclear ”   
 
1.1(a) of Appendix A
“ Event of Default ”   
 
6.01
“ Excess Proceeds ”   
 
4.11(c)
“ Expiration Date ”   
 
1.05(j)
“ Global Note ”   
 
2.1(b) of Appendix A
“ Global Notes Legend ”   
 
2.2(e) of Appendix A
“ Guaranteed Obligation ”   
 
11.01(a)
 
 
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Term
 
 
Defined in Section
“ IAI ”   
 
1.1(a) of Appendix A
“ IAI Global Note ”   
 
2.1(b) of Appendix A
“ Note Register ”   
 
2.03(a)
“ Paying Agent ”   
 
2.03(a)
“ QIB ”   
 
1.1(a) of Appendix A
“ Registrar ”   
 
2.03(a)
“ Regulation S ”   
 
1.1(a) of Appendix A
“ Regulation S Global Note ”   
 
2.1(b) of Appendix A
“ Regulation S Notes ”   
 
2.1(a) of Appendix A
“ Restricted Notes Legend ”   
 
2.2(e) of Appendix A
“ Rule 144 ”   
 
1.1(a) of Appendix A
“ Rule 144A ”   
 
1.1(a) of Appendix A
“ Rule 144A Global Note ”   
 
2.1(b) of Appendix A
“ Rule 144A Notes ”   
 
2.1(a) of Appendix A
“ Sale and Lease-Back Transaction”   
 
4.08(a)
“ Successor Issuer ”   
 
5.01(a)
“ Termination Date ”   
 
4.12(a)
“ Successor Subsidiary Guarantor ”   
 
5.01(c)
“ Unrestricted Global Note ”   
 
1.1(a) of Appendix A
 
Section 1.03                Rules of Construction .

Unless the context otherwise requires:

(1)              a term defined in Section 1.01 or 1.02 has the meaning assigned to it therein, and a term used herein that is defined in the Trust Indenture Act, either directly or by reference therein, shall have the meaning assigned to it therein;

(2)              an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;

(3)              “or” is not exclusive;

(4)              words in the singular include the plural, and words in the plural include the singular;
 
(5)              unless the context otherwise requires, any reference to an “Appendix,” “Article,” “Section,” “clause,” “Schedule” or “Exhibit” refers to an Appendix, Article, Section, clause, Schedule or Exhibit, as the case may be, of this Indenture;

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

(7)              “including” means including without limitation;

(8)              references to sections of, or rules under, the Securities Act, the Exchange Act or the Trust Indenture Act shall be deemed to include substitute, replacement or successor sections or rules adopted by the Commission from time to time;
 
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(9)              unless otherwise provided, references to agreements and other instruments shall be deemed to include all amendments and other modifications to such agreements or instruments, but only to the extent such amendments and other modifications are not prohibited by the terms of this Indenture; and

(10)           in the event that a transaction meets the criteria of more than one category of permitted transactions or listed exceptions, the Issuer may classify such transaction as it, in its sole discretion, determines.

Section 1.04                 Incorporation by Reference of Trust Indenture Act .
 
Whenever this Indenture refers to a provision of the Trust Indenture Act as applicable to this Indenture, the provision is incorporated by reference in and made a part of this Indenture.
 
The following Trust Indenture Act terms used in this Indenture have the following meanings:
 
“ indenture securities ” means the Notes;

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

“ indenture to be qualified ” means this Indenture;

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

“ obligor ” on the Notes and the Guarantees means the Issuer and the Subsidiary Guarantors, respectively, and any successor obligor upon the Notes and the Guarantees, respectively.

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

Section 1.05                 Acts of Holders .

(a)              Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing.  Except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments or record or both are delivered to the Trustee and, where it is hereby expressly required, to the Issuer and the Subsidiary Guarantors.  Proof of execution of any such instrument or of a writing appointing any such agent, or the holding by any Person of a Note, shall be sufficient for any purpose of this Indenture and (subject to Section 7.01) conclusive in favor of the Trustee, the Issuer and the Subsidiary Guarantors, if made in the manner provided in this Section 1.05.

(b)              The fact and date of the execution by any Person of any such instrument or writing may be proved (1) by the affidavit of a witness of such execution or by the certificate of any notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof or (2) in any other manner deemed reasonably sufficient by the Trustee.  Where such execution is by or on behalf of any legal entity other than an individual, such certificate or affidavit shall also constitute proof of the authority of the Person executing the same.  The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner that the Trustee deems sufficient.
 
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(c)              The ownership of Notes shall be proved by the Note Register.

(d)             Any request, demand, authorization, direction, notice, consent, waiver or other action by the Holder of any Note shall bind every future Holder of the same Note and the Holder of every Note issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof, in respect of any action taken, suffered or omitted by the Trustee, the Issuer or the Subsidiary Guarantors in reliance thereon, whether or not notation of such action is made upon such Note.

(e)              The Issuer may set a record date for purposes of determining the identity of Holders entitled to make, give or take any request, demand, authorization, direction, notice, consent, waiver or other action provided in this Indenture to be made, or to vote on or consent to any action authorized or permitted to be taken by Holders; provided that the Issuer may not set a record date for, and the provisions of this paragraph shall not apply with respect to, the giving or making of any notice, declaration, request or direction referred to in clause (f) below.  Unless otherwise specified, if not set by the Issuer prior to the first solicitation of a Holder made by any Person in respect of any such action, or in the case of any such vote, prior to such vote, any such record date shall be the later of 30 days prior to the first solicitation of such consent or vote or the date of the most recent list of Holders furnished to the Trustee prior to such solicitation or vote.  If any record date is set pursuant to this clause (e), the Holders on such record date, and only such Holders, shall be entitled to make, give or take such request, demand, authorization, direction, notice, consent, waiver or other action (including revocation of any action), whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder unless made, given or taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Notes, or each affected Holder, as applicable, on such record date.  Promptly after any record date is set pursuant to this paragraph, the Issuer, at its own expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Trustee in writing and to each Holder in the manner set forth in Section 12.02.

(f)              The Trustee may set any day as a record date for the purpose of determining the Holders entitled to join in the giving or making of (1) any notice of default under Section 6.01, (2) any declaration of acceleration referred to in Section 6.02, (3) any direction referred to in Section 6.05 or (4) any request to pursue a remedy as permitted in Section 6.06.  If any record date is set pursuant to this paragraph, the Holders on such record date, and no other Holders, shall be entitled to join in such notice, declaration, request or direction, whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder unless made, given or taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Notes or each affected Holder, as applicable, on such record date.  Promptly after any record date is set pursuant to this paragraph, the Trustee, at the Issuer’s expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Issuer and to each Holder in the manner set forth in Section 12.02.

(g)              Without limiting the foregoing, a Holder entitled to take any action hereunder with regard to any particular Note may do so with regard to all or any part of the principal amount of such Note or by one or more duly appointed agents, each of which may do so pursuant to such appointment with regard to all or any part of such principal amount.  Any notice given or action taken by a Holder or its agents with regard to different parts of such principal amount pursuant to this paragraph shall have the same effect as if given or taken by separate Holders of each such different part.

(h)              Without limiting the generality of the foregoing, a Holder, including a Depositary that is the Holder of a Global Note, may make, give or take, by a proxy or proxies duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other action provided in this Indenture to be made, given or taken by Holders, and a Depositary that is the Holder of a Global Note may provide its proxy or proxies to the beneficial owners of interests in any such Global Note through such Depositary’s standing instructions and customary practices.
 
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(i)              The Issuer may fix a record date for the purpose of determining the Persons who are beneficial owners of interests in any Global Note held by a Depositary entitled under the procedures of such Depositary, if any, to make, give or take, by a proxy or proxies duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other action provided in this Indenture to be made, given or taken by Holders; provided that if such a record date is fixed, only the beneficial owners of interests in such Global Note on such record date or their duly appointed proxy or proxies shall be entitled to make, give or take such request, demand, authorization, direction, notice, consent, waiver or other action, whether or not such beneficial owners remain beneficial owners of interests in such Global Note after such record date.  No such request, demand, authorization, direction, notice, consent, waiver or other action shall be effective hereunder unless made, given or taken on or prior to the applicable Expiration Date.

(j)              With respect to any record date set pursuant to this Section 1.05, the party hereto that sets such record date may designate any day as the “ Expiration Date ” and from time to time may change the Expiration Date to any earlier or later day; provided that no such change shall be effective unless notice of the proposed new Expiration Date is given to the other party hereto in writing, and to each Holder of Notes in the manner set forth in Section 12.02, on or prior to both the existing and the new Expiration Date.  If an Expiration Date is not designated with respect to any record date set pursuant to this Section 1.05, the party hereto which set such record date shall be deemed to have initially designated the 90th day after such record date as the Expiration Date with respect thereto, subject to its right to change the Expiration Date as provided in this clause (j).

ARTICLE 2

THE NOTES

Section 2.01                Form and Dating; Terms .

(a)              Provisions relating to the Initial Notes, Additional Notes, Exchange Notes and any other Notes issued under this Indenture are set forth in Appendix A, which is hereby incorporated in and expressly made a part of this Indenture.  The Notes and the Trustee’s certificate of authentication shall each be substantially in the form of Exhibit A hereto, which is hereby incorporated in and expressly made a part of this Indenture.  The Notes may have notations, legends or endorsements required by law, rules or agreements with national securities exchanges to which the Issuer or any Subsidiary Guarantor is subject, if any, or usage ( provided that any such notation, legend or endorsement is in a form acceptable to the Issuer).  Each Note shall be dated the date of its authentication.  The Notes shall be in denominations of $2,000 and integral multiples of $1,000 in excess thereof.

(b)              The aggregate principal amount of Notes that may be authenticated and delivered under this Indenture is unlimited.

The terms and provisions contained in the Notes shall constitute, and are hereby expressly made, a part of this Indenture, and the Issuer, the Subsidiary Guarantors and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby.  However, to the extent any provision of any Note conflicts with the express provisions of this Indenture, the provisions of this Indenture shall govern and be controlling.
 
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The Notes shall be subject to repurchase by the Issuer pursuant to an Asset Sale Offer as provided in Section 4.11, a Change of Control Offer as provided in Section 4.10, and otherwise as not prohibited by this Indenture.  The Notes shall not be redeemable, other than as provided in Article 3.

Additional Notes ranking pari passu with the Initial Notes may be created and issued from time to time by the Issuer without notice to or consent of the Holders and shall be consolidated with and form a single class with the Initial Notes and the Exchange Notes and shall have the same terms as to status, redemption or otherwise (other than issue date, issue price and, if applicable, the first Interest Payment Date and the first date from which interest will accrue) as the Initial Notes; provided that if any Additional Notes are not fungible with the Initial Notes for U.S. federal income tax purposes, such Additional Notes will have a separate CUSIP number and ISIN from the Initial Notes; provided, further , that the Issuer’s ability to issue Additional Notes shall be subject to the Issuer’s compliance with Section 4.06.  Any Additional Notes shall be issued with the benefit of an indenture supplemental to this Indenture.

Section 2.02                Execution and Authentication .

(a)              At least one Officer shall execute the Notes on behalf of the Issuer by manual or facsimile signature.  If an Officer whose signature is on a Note no longer holds that office at the time a Note is authenticated, the Note shall nevertheless be valid.

(b)              A Note shall not be entitled to any benefit under this Indenture or be valid or obligatory for any purpose until authenticated substantially in the form of Exhibit A attached hereto by the manual signature of an authorized signatory of the Trustee.  The signature shall be conclusive evidence that the Note has been duly authenticated and delivered under this Indenture.

(c)              On the Issue Date, the Trustee shall, upon receipt of a written order of the Issuer signed by an Officer (an “ Authentication Order ”), an Officers’ Certificate and Opinion of Counsel, authenticate and deliver the Initial Notes.  In addition, at any time and from time to time, the Trustee shall, upon receipt of an Authentication Order, Officers’ Certificate and Opinion of Counsel, authenticate and deliver any Additional Notes and Exchange Notes in an aggregate principal amount specified in such Authentication Order for such Additional Notes or Exchange Notes issued hereunder.

(d)              The Trustee may appoint an authenticating agent acceptable to the Issuer to authenticate Notes.  An authenticating agent may authenticate Notes whenever the Trustee may do so.  Each reference in this Indenture to authentication by the Trustee includes authentication by such agent.

(e)              The Trustee shall authenticate and make available for delivery upon a written order of the Issuer signed by one Officer of the Issuer (a) Initial Notes for original issue on the Issue Date in an aggregate principal amount of $720,000,000, (b) subject to the terms of this Indenture, Additional Notes, (c) the Exchange Notes for issue only in an Exchange Offer and pursuant to the Registration Rights Agreement and for a like principal amount of Initial Notes exchanged pursuant thereto and (d) any other Unrestricted Global Notes issued in exchange for any of the foregoing in accordance with this Indenture.  Such order shall specify the amount of the Notes to be authenticated, the date on which the original issue of Notes is to be authenticated and whether the Notes are to be Initial Notes, Additional Notes, Exchange Notes or other Unrestricted Global Notes.

Section 2.03                Registrar and Paying Agent .

(a)              The Issuer shall maintain an office or agency where Notes may be presented for registration of transfer or for exchange (“ Registrar ”) and at least one office or agency where Notes may be presented for payment (“ Paying Agent ”).  The Registrar shall keep a register of the Notes (“ Note Register ”) and of their transfer and exchange.  The Issuer may appoint one or more co-registrars and one or more additional paying agents.  The term “ Registrar ” includes any co-registrar, and the term “ Paying Agent ” includes any additional paying agent.  The Issuer may change any Paying Agent or Registrar without prior notice to any Holder.  The Issuer shall notify the Trustee in writing of the name and address of any Agent not a party to this Indenture.  If the Issuer fails to appoint or maintain another entity as Registrar or Paying Agent, the Trustee shall act as such.  The Issuer or any of its Subsidiaries may act as Paying Agent or Registrar.
 
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(b)              The Issuer initially appoints The Depository Trust Company to act as Depositary with respect to the Global Notes.  The Issuer initially appoints the Trustee to act as Paying Agent and Registrar for the Notes and to act as Custodian with respect to the Global Notes. The Trustee shall have no liability or responsibility for the action or inaction of the Depositary or any other depositary or clearing system.

Section 2.04                Paying Agent to Hold Money in Trust .

The Issuer shall, no later than 11:00 a.m. (New York City time) on each due date for the payment of principal, premium, if any, and interest on any of the Notes, deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be held in trust for the Holders entitled to the same, and (unless such Paying Agent is the Trustee) the Issuer shall promptly notify the Trustee of its action or failure so to act.  The Issuer shall require each Paying Agent other than the Trustee to agree in writing that such Paying Agent shall hold in trust for the benefit of Holders or the Trustee all money held by such Paying Agent for the payment of principal, premium, if any, and interest on the Notes, and shall notify the Trustee of any default by the Issuer in making any such payment.  While any such default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee.  The Issuer at any time may require a Paying Agent to pay all money held by it to the Trustee.  Upon payment over to the Trustee, a Paying Agent shall have no further liability for the money.  If the Issuer or a Subsidiary acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders all money held by it as Paying Agent.  Upon any bankruptcy or reorganization proceedings relating to the Issuer, the Trustee shall serve as Paying Agent for the Notes.

Section 2.05                Holder Lists .

The Registrar shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of all Holders and shall otherwise comply with Trust Indenture Act Section 312(b).  If the Trustee is not the Registrar, the Issuer shall furnish to the Trustee at least two Business Days before each Interest Payment Date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of the Holders, and the Issuer shall otherwise comply with Trust Indenture Act Section 312(a).

Section 2.06                Transfer and Exchange .

(a)              The Notes shall be issued in registered form and shall be transferable only upon the surrender of a Note for registration of transfer and in compliance with Appendix A.

(b)              To permit registrations of transfers and exchanges, the Issuer shall execute and the Trustee shall authenticate Global Notes and Definitive Notes upon receipt of an Authentication Order and any additional deliverables required under Section 2.02 or at the Registrar’s request.

(c)              No service charge shall be imposed in connection with any registration of transfer or exchange (other than pursuant to Section 2.07), but the Holders shall be required to pay any transfer tax or similar governmental charge payable in connection therewith (other than any such transfer taxes or similar governmental charge payable upon exchange or transfer pursuant to Sections 2.10, 3.06, 3.09, 4.10, 4.11 and 9.05).
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(d)              All Global Notes and Definitive Notes issued upon any registration of transfer or exchange of Global Notes or Definitive Notes shall be the valid obligations of the Issuer, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Global Notes or Definitive Notes surrendered upon such registration of transfer or exchange.

(e)              Neither the Issuer nor the Registrar shall be required (1) to issue, to register the transfer of or to exchange any Note during a period beginning at the opening of business 15 days before the day of any selection of Notes for redemption under Section 3.02 and ending at the close of business on the day of selection, (2) to register the transfer of or to exchange any Note so selected for redemption, or tendered for repurchase (and not withdrawn) in connection with a Change of Control Offer or an Asset Sale Offer, in whole or in part, except the unredeemed or unpurchased portion of any Note being redeemed or repurchased in part or (3) to register the transfer of or to exchange any Note between a Record Date and the next succeeding Interest Payment Date.

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

(g)              Upon surrender for registration of transfer of any Note at the office or agency of the Issuer designated pursuant to Section 4.02, the Issuer shall execute, and the Trustee shall authenticate and mail, in the name of the designated transferee or transferees, one or more replacement Notes of any authorized denomination or denominations of a like aggregate principal amount.

(h)              At the option of the Holder, Notes may be exchanged for other Notes of any authorized denomination or denominations of a like aggregate principal amount upon surrender of the Notes to be exchanged at such office or agency.  Whenever any Global Notes or Definitive Notes are so surrendered for exchange, the Issuer shall execute, and the Trustee shall authenticate and mail, the replacement Global Notes and Definitive Notes which the Holder making the exchange is entitled to in accordance with the provisions of Appendix A.

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

Section 2.07                Replacement Notes .

If a mutilated Note is surrendered to the Trustee or if a Holder claims that its Note has been lost, destroyed or wrongfully taken and the Trustee receives evidence to its satisfaction of the ownership and loss, destruction or theft of such Note, the Issuer shall issue and the Trustee, upon receipt of an Authentication Order, shall authenticate a replacement Note if the Trustee’s requirements are otherwise met.  If required by the Trustee or the Issuer, an indemnity bond must be provided by the Holder that is sufficient in the judgment of the Trustee and the Issuer to protect the Issuer, the Trustee, any Agent and any authenticating agent from any loss that any of them may suffer if a Note is replaced.  The Issuer may charge the Holder for the expenses of the Issuer and the Trustee in replacing a Note.  Every replacement Note is a contractual obligation of the Issuer and shall be entitled to all of the benefits of this Indenture equally and proportionately with all other Notes duly issued hereunder.  Notwithstanding the foregoing provisions of this Section 2.07, in case any mutilated, lost, destroyed or wrongfully taken Note has become or is about to become due and payable, the Issuer in its discretion may, instead of issuing a new Note, pay such Note.
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Section 2.08                Outstanding Notes .

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

(b)              If a Note is replaced pursuant to Section 2.07, it ceases to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Note is held by a protected purchaser, as such term is defined in Section 8-303 of the Uniform Commercial Code in effect in the State of New York.

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

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

Section 2.09                Treasury Notes .

In determining whether the Holders of the requisite principal amount of Notes have concurred in any direction, waiver or consent, Notes beneficially owned by the Issuer, or by any affiliate of the Issuer, shall be considered as though not outstanding, except that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent, only Notes that a Responsible Officer of the Trustee actually knows are so owned shall be so disregarded.  Notes so owned which have been pledged in good faith shall not be disregarded if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right to deliver any such direction, waiver or consent with respect to the Notes and that the pledgee is not the Issuer or any obligor upon the Notes or any affiliate of the Issuer or of such other obligor.

Section 2.10                Temporary Notes .

Until definitive Notes are ready for delivery, the Issuer may prepare and the Trustee, upon receipt of an Authentication Order, shall authenticate temporary Notes.  Temporary Notes shall be substantially in the form of definitive Notes but may have variations that the Issuer considers appropriate for temporary Notes and as shall be reasonably acceptable to the Trustee.  Without unreasonable delay, the Issuer shall prepare and the Trustee shall authenticate definitive Notes in exchange for temporary Notes.  Holders and beneficial holders, as the case may be, of temporary Notes shall be entitled to all of the benefits accorded to Holders, or beneficial holders, respectively, of Notes under this Indenture.

Section 2.11                Cancellation .

The Issuer at any time may deliver Notes to the Trustee for cancellation.  The Registrar and Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of transfer, exchange or payment.  The Trustee or, at the direction of the Trustee, the Registrar or the Paying Agent and no one else shall cancel all Notes surrendered for registration of transfer, exchange, payment, replacement or cancellation and shall destroy cancelled Notes in accordance with its customary procedures (subject to the record retention requirement of the Exchange Act).  Certification of the destruction of all cancelled Notes shall, upon the written request of the Issuer, be delivered to the Issuer.  The Issuer may not issue new Notes to replace Notes that it has paid or that have been delivered to the Trustee for cancellation.
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Section 2.12                Defaulted Interest .

(a)              If the Issuer defaults in a payment of interest on the Notes, it shall pay the defaulted interest in any lawful manner plus, to the extent lawful, interest payable on the defaulted interest, to the Persons who are Holders on a subsequent special record date, in each case at the rate provided in the Notes and in Section 4.01.  The Issuer shall notify the Trustee in writing of the amount of defaulted interest proposed to be paid on each Note and the date of the proposed payment, and at the same time the Issuer shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such defaulted interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such defaulted interest as provided in this Section 2.12.  The Trustee shall fix or cause to be fixed each such special record date and payment date; provided that no such special record date shall be less than 15 days prior to the related payment date for such defaulted interest.  The Trustee shall promptly notify the Issuer of such special record date.  At least 15 days before the special record date, the Issuer (or, upon the written request of the Issuer, the Trustee in the name and at the expense of the Issuer) shall mail or deliver by electronic transmission in accordance with the applicable procedures of the Depositary, or cause to be mailed or delivered by electronic transmission in accordance with the applicable procedures of the Depositary to each Holder a notice that states the special record date, the related payment date and the amount of such interest to be paid.

(b)              Subject to the foregoing provisions of this Section 2.12 and for greater certainty, each Note delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Note shall carry the rights to interest accrued and unpaid, and to accrue interest, which were carried by such other Note.

Section 2.13           CUSIP and ISIN Numbers

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

ARTICLE 3

REDEMPTION

Section 3.01                Notices to Trustee .

If the Issuer elects to redeem Notes pursuant to Section 3.07, it shall furnish to the Trustee, at least five Business Days before notice of redemption is required to be mailed or caused to be mailed to Holders pursuant to Section 3.03 (unless a shorter notice shall be agreed to by the Trustee) but not more than 60 days before a redemption date, an Officers’ Certificate setting forth (1) the paragraph or subparagraph of such Note or Section of this Indenture pursuant to which the redemption shall occur, (2) the redemption date, (3) the principal amount of the Notes to be redeemed, identified by CUSIP, and (4) the redemption price, if then ascertainable.
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Section 3.02                Selection of Notes to Be Redeemed or Purchased .

(a)              If less than all of the Notes are to be redeemed pursuant to Section 3.07 or purchased in an Offer to Purchase at any time, the Trustee shall select the Notes to be redeemed or purchased (1) if the Notes are listed on any national securities exchange, in compliance with the requirements of the principal national securities exchange on which the Notes are listed or (2) if the Notes are not so listed, on a pro rata basis or by such other method as the Trustee deems to be fair and appropriate in accordance with the applicable procedures of the Depositary.

(b)              The Trustee shall promptly notify the Issuer in writing of the Notes selected for redemption or purchase and, in the case of any Note selected for partial redemption or purchase, the principal amount thereof to be redeemed or purchased.  Notes and portions of Notes selected shall be in amounts of $1,000 or integral multiples of $1,000; provided that no Notes of $2,000 in principal amount or less shall be redeemed in part.  Except as provided in the preceding sentence, provisions of this Indenture that apply to Notes called for redemption or purchase also apply to portions of Notes called for redemption or purchase.

(c)              After the redemption date or purchase date, upon surrender of a Note to be redeemed or purchased in part only, a new Note or Notes in principal amount equal to the unredeemed or unpurchased portion of the original Note, representing the same Indebtedness to the extent not redeemed or not purchased, shall be issued in the name of the Holder of the Notes upon cancellation of the original Note (or appropriate book entries shall be made to reflect such partial redemption).

Section 3.03                            Notice of Redemption .

(a)              Subject to Section 3.09, the Issuer shall mail or deliver by electronic transmission in accordance with the applicable procedures of the Depositary, or cause to be mailed (or delivered by electronic transmission in accordance with the applicable procedures of the Depositary) notices of redemption of Notes not less than 30 days but not more than 60 days before the redemption date to each Holder whose Notes are to be redeemed pursuant to this Article at such Holder’s registered address or otherwise in accordance with the applicable procedures of the Depositary, except that redemption notices may be mailed more than 60 days prior to a redemption date if the notice is issued in connection with Article 8 or Article 10.

(b)              The notice shall identify the Notes to be redeemed (including CUSIP and ISIN number, if applicable) and shall state:

(1)              the redemption date;

(2)              the redemption price, including the portion thereof representing any accrued and unpaid interest; provided that in connection with a redemption under Section 3.07(a), the notice need not set forth the redemption price but only the manner of calculation thereof;

(3)              if any Note is to be redeemed in part only, the portion of the principal amount of that Note that is to be redeemed;

(4)              the name and address of the Paying Agent;
 
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(5)              that Notes called for redemption must be surrendered to the Paying Agent to collect the redemption price;

(6)              that, unless the Issuer defaults in making such redemption payment or the Paying Agent is prohibited from making such payment pursuant to the terms of this Indenture, interest on Notes called for redemption ceases to accrue on and after the redemption date;

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

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

(9)              if applicable, any conditions precedent to the Issuer’s obligation to consummate such redemption.

(c)              At the Issuer’s request, the Trustee shall give the notice of redemption in the Issuer’s name and at the Issuer’s expense; provided that the Issuer shall have delivered to the Trustee, at least five Business Days before notice of redemption is required to be sent or caused to be sent to Holders pursuant to this Section 3.03 (unless a shorter notice shall be agreed to by the Trustee), an Officers’ Certificate requesting that the Trustee give such notice and setting forth the information to be stated in such notice as provided in Section 3.03(b).

Section 3.04                            Effect of Notice of Redemption .

Once notice of redemption is delivered in accordance with Section 3.03, Notes called for redemption become irrevocably due and payable on the redemption date at the redemption price (except as provided for in Section 3.07(c)).  The notice, if mailed or delivered by electronic transmission in a manner herein provided, shall be conclusively presumed to have been given, whether or not the Holder receives such notice.  In any case, failure to give such notice or any defect in the notice to the Holder of any Note designated for redemption in whole or in part shall not affect the validity of the proceedings for the redemption of any other Note.  Subject to Section 3.05, upon payment of the redemption price on the redemption date, interest ceases to accrue on Notes or portions of Notes called for redemption.

Section 3.05                            Deposit of Redemption or Purchase Price .

(a)              No later than 11:00 a.m. (New York City time) on the redemption or purchase date (or such later time on such date to which the Trustee may reasonably agree), the Issuer shall deposit with the Trustee or with the Paying Agent money sufficient to pay the redemption or purchase price of and accrued and unpaid interest on all Notes to be redeemed or purchased on that date.  The Paying Agent shall promptly deliver to each Holder whose Notes are to be redeemed or repurchased the applicable redemption or purchase price thereof and accrued and unpaid interest thereon.  The Trustee or the Paying Agent shall promptly return to the Issuer any money deposited with the Trustee or the Paying Agent by the Issuer in excess of the amounts necessary to pay the redemption or purchase price of, and accrued and unpaid interest on, all Notes to be redeemed or purchased.

(b)              If the Issuer complies with the provisions of Section 3.05(a), on and after the redemption or purchase date, interest shall cease to accrue on the Notes or the portions of Notes called for redemption or purchase.  If a Note is redeemed or purchased on or after a Record Date but on or prior to the related Interest Payment Date, then any accrued and unpaid interest to the redemption or purchase date in respect of such Note will be paid on such redemption or purchase date to the Person in whose name such Note is registered at the close of business on such Record Date.  If any Note called for redemption or purchase shall not be so paid upon surrender for redemption or purchase because of the failure of the Issuer to comply with Section 3.05(a), interest shall be paid on the unpaid principal, from the redemption or purchase date until such principal is paid, and, to the extent lawful, on any interest accrued to the redemption or purchase date not paid on such unpaid principal, in each case at the rate provided in the Notes and in Section 4.01.
 
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Section 3.06                Notes Redeemed or Purchased in Part .

Upon surrender of a Note that is redeemed or purchased in part, the Issuer shall issue and, upon receipt of an Authentication Order, the Trustee shall promptly authenticate and mail to the Holder (or cause to be transferred by book entry) at the expense of the Issuer a new Note equal in principal amount to the unredeemed or unpurchased portion of the Note surrendered representing the same Indebtedness to the extent not redeemed or purchased; provided that each new Note shall be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof.  It is understood that, notwithstanding anything in this Indenture to the contrary, only an Authentication Order and not an Opinion of Counsel or Officers’ Certificate is required for the Trustee to authenticate a new Note in accordance with this Section 3.06.

Section 3.07                            Optional Redemption .

(a)              On and after October 15, 2020, the Issuer may, on any one or more occasions, redeem the Notes, in whole or in part, upon notice pursuant to Section 3.03 at the redemption prices (expressed as a percentage of principal amount of the Notes to be redeemed) set forth below, plus accrued and unpaid interest thereon, if any, to the applicable redemption date, if redeemed during the 12-month period beginning on October 15 of each of the years indicated below:

Year
 
Percentage
2020   
 
102.438%
2021   
 
102.438%
2022 and thereafter   
 
100.000%
     
(b)        Any redemption pursuant to this Section 3.07 shall be made pursuant to the provisions of Sections 3.01 through 3.06.

(c)              Any redemption notice in connection with this Section 3.07 may, at the Issuer’s discretion, be subject to one or more conditions precedent, including completion of any transaction.

(d)              The Notes shall not be redeemable prior to October 15, 2020.

Section 3.08                            Mandatory Redemption .
 
The Issuer will not be required to make mandatory redemption or sinking fund payments with respect to the Notes.

Section 3.09                 Offers to Repurchase by Application of Excess Proceeds .

(a)              In the event that, pursuant to Section 4.11, the Issuer is required to commence an Asset Sale Offer, the Issuer will follow the procedures specified below.

(b)              The Asset Sale Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “ Asset Sale Offer Period ”).  No later than five Business Days after the termination of the Asset Sale Offer Period (the “ Asset Sale Purchase Date ”), the Issuer will apply all Excess Proceeds to the purchase of the maximum aggregate principal amount of Notes and, if applicable, other Debt (on a pro rata basis, if applicable) required to be purchased pursuant to Section 4.11 (the “ Asset Sale Offer Amount ”), or, if less than the Asset Sale Offer Amount of Notes (and, if applicable, other Debt) has been so validly tendered, all Notes (and, if applicable, other Debt) validly tendered in response to the Asset Sale Offer.  Payment for any Notes so purchased will be made in the same manner as interest payments on the Notes are made.
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(c)              If the Asset Sale Purchase Date is on or after a Record Date and on or before the related Interest Payment Date, any accrued and unpaid interest up to but excluding the Asset Sale Purchase Date, shall be paid to the Person in whose name a Note is registered at the close of business on such Record Date.

(d)              Upon the commencement of an Asset Sale Offer, the Issuer shall mail a notice to each of the Holders or otherwise deliver such notice in accordance with the applicable procedures of the Depositary, with a copy to the Trustee.  The notice shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer.  The Asset Sale Offer shall be made to all Holders and, if required, all holders of other Debt.  The notice, which shall govern the terms of the Asset Sale Offer, shall state:

(1)              that an Asset Sale Offer is being made pursuant to this Section 3.09 and Section 4.11 and the expiration time of the Asset Sale Period;

(2)              the Asset Sale Offer Amount, the purchase price, including the portion thereof representing any accrued and unpaid interest, and the Asset Sale Purchase Date;

(3)              that Notes must be tendered in integral multiples of $1,000 (subject to clause (8) below), and any Note not properly tendered will remain outstanding and will continue to accrue interest;

(4)              that, unless the Issuer defaults in making the payment, any Note accepted for payment pursuant to the Asset Sale Offer will cease to accrue interest on and after the Asset Sale Purchase Date;

(5)              that Holders electing to have a Note purchased pursuant to any Asset Sale Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” attached to such Note completed, to the Paying Agent specified in the notice at the address specified in the notice prior to the close of business on the third Business Day preceding the Asset Sale Purchase Date;
 
(6)              that Holders shall be entitled to withdraw their election if the Issuer, the Depositary or the Paying Agent, as the case may be, receives at the address specified in the notice, not later than the expiration of the Asset Sale Offer Period, a telegram, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder tendered for purchase and a statement that such Holder is withdrawing its tendered Notes and its election to have such Note purchased;

(7)              that, if the aggregate principal amount of Notes and other Debt surrendered by the holders thereof exceeds the Asset Sale Offer Amount, then the Notes and other Debt will be purchased on a pro rata basis based on the aggregate accreted value or principal amount, as applicable, of the Notes tendered and such other Debt tendered, and the selection of the Notes or such other Debt for purchase shall be made by the Trustee on a pro rata basis among all such Notes tendered (subject to any applicable procedures of the Depositary), although no Note having a principal amount of $2,000 shall be purchased in part;
 
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(8)              that Holders who se Notes were purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (the unpurchased portion of the Notes must be equal to $2,000 or an integral multiple of $1,000 in excess thereof); and

(9)              the other procedures, as determined by the Issuer, consistent with this Section 3.09 that a Holder must follow.

(e)              On or before the Asset Sale Purchase Date, the Issuer will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary or as otherwise provided in Section 4.11(c), the Asset Sale Offer Amount of Notes and other Debt or portions thereof validly tendered and not properly withdrawn pursuant to the Asset Sale Offer, or, if less than the Asset Sale Offer Amount has been validly tendered and not properly withdrawn, all Notes and other Debt so tendered, in the case of the Notes, in whole number multiples of $1,000; provided that if, following repurchase of a portion of a Note, the remaining principal amount of such Note outstanding immediately after such repurchase would be less than $2,000, then the portion of such Note so repurchased shall be reduced so that the remaining principal amount of such Note outstanding immediately after such repurchase is $2,000.  The Issuer will deliver, or cause to be delivered, to the Trustee the Notes so accepted and an Officers’ Certificate stating the aggregate principal amount of Notes or portions thereof so accepted and that such Notes or portions thereof were accepted for payment by the Issuer in accordance with the terms of this Section 3.09.

(f)              The Paying Agent or the Issuer, as the case may be, will promptly, but in no event later than five Business Days after termination of the Asset Sale Offer Period, mail or deliver to each tendering Holder or holder or lender of other Debt, as the case may be, an amount equal to the purchase price of the Notes or the other Debt so validly tendered and not properly withdrawn by such holder or lender, as the case may be, and accepted by the Issuer for purchase, and the Issuer will promptly issue a new Note, and the Trustee, upon receipt of an Authentication Order, will authenticate and mail or deliver (or cause to be transferred by book-entry) such new Note to such Holder  in a principal amount equal to any unpurchased portion of the Note surrendered; provided that each such new Note will be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof.  Any Note not so accepted will be promptly mailed or delivered by the Issuer to the Holder thereof.

(g)              The Issuer will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws or regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of Notes as a result of an Asset Sale Offer.  To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Indenture by virtue of any conflict.
 
Other than as specifically provided in this Section 3.09 or Section 4.11, any purchase pursuant to this Section 3.09 shall be made pursuant to the applicable provisions of Sections 3.01 through 3.06.
 
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ARTICLE 4

COVENANTS

Section 4.01                 Payment of Notes .

(a)              The Issuer will pay, or cause to be paid, the principal, premium, if any, and interest on the Notes on the dates and in the manner provided in the Notes.  Principal, premium, if any, and interest shall be considered paid on the date due if the Paying Agent, if other than the Issuer or a Subsidiary, holds as of 11:00 a.m. (New York City) time, on the due date money deposited by the Issuer in immediately available funds and designated for and sufficient to pay the principal, premium, if any, and interest then due.

(b)              The Issuer shall pay all Additional Interest, if any, in the same manner on the dates and in the amounts set forth in the Registration Rights Agreement.  In the event the Issuer is required to pay Additional Interest, the Issuer shall provide written notice to the Trustee of the Issuer’s obligation to pay Additional Interest no later than 15 days prior to the next Interest Payment Date, which notice shall set forth the amount of the Additional Interest to be paid by the Issuer.

(c)              The Issuer shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal and premium, if any, at the rate equal to the then applicable interest rate on the Notes to the extent lawful; it shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest (without regard to any applicable grace period) at the same rate to the extent lawful.

Section 4.02                 Maintenance of Office or Agency .

The Issuer shall maintain an office or agency (which may be an office of the Trustee or an affiliate of the Trustee, Registrar or co-registrar) where Notes may be surrendered for registration of transfer or for exchange and where notices and demands to or upon the Issuer and the Subsidiary Guarantors in respect of the Notes and this Indenture may be served.  The Issuer shall give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency.  If at any time the Issuer shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands  (but not service of process) may be made or served at the Corporate Trust Office.

The Issuer may also from time to time designate additional offices or agencies where the Notes may be presented or surrendered for any or all such purposes and may from time to time rescind such designations.  The Issuer shall give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.
 
The Issuer hereby designates the Corporate Trust Office as one such office or agency of the Issuer in accordance with Section 2.03.

Section 4.03                 Provision of Financial Information .

Whether or not required by the Commission, so long as any Notes are outstanding, the Issuer will furnish to the Holders, or file electronically with the Commission through the Commission’s Electronic Data Gathering, Analysis and Retrieval System (or any successor system), within the time periods specified in the Commission’s rules and regulations:

(1) all quarterly and annual financial information that would be required to be contained in a filing by the Issuer with the Commission on Forms 10-Q and 10-K if the Issuer were required to file such Forms, including a “Management’s discussion and analysis of financial condition and results of operations” and, with respect to the annual information only, a report on the annual financial statements by the Issuer’s certified independent accountants; and
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(2) all current reports that would be required to be filed by the Issuer with the Commission on Form 8-K if the Issuer were required to file such reports.

In addition, whether or not required by the Commission, the Issuer will file a copy of all of the information and reports referred to in clauses (1) and (2) above with the Commission for public availability within the time periods specified in the Commission’s rules and regulations (unless the Commission will not accept such a filing) and make such information available to prospective investors. In addition, the Issuer has agreed that, for so long as any Notes remain outstanding, it will furnish to the Holders of such Notes and to prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.

Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates). The Trustee shall have no responsibility or liability for the filing, content or timeliness of any such report, information or document other than the report of the Trustee specifically required hereunder.
 
Section 4.04                 Compliance Certificate .

(a)              The Issuer will deliver to the Trustee, within 120 days after the end of each fiscal year ending after the Issue Date, a certificate from the principal executive officer, principal financial officer or principal accounting officer stating that a review of the activities of the Issuer and its Restricted Subsidiaries during the preceding fiscal year has been made under the supervision of the signing Officer with a view to determining whether the Issuer and each Subsidiary Guarantor have kept, observed, performed and fulfilled their obligations under this Indenture, and further stating, as to such Officer signing such certificate, that to the best of his or her knowledge, the Issuer and each Subsidiary Guarantor have kept, observed, performed and fulfilled each and every condition and covenant contained in this Indenture and is not in default in the performance or observance of any of the terms, provisions, covenants and conditions of this Indenture (or, if a Default shall have occurred, describing all such Defaults of which he or she may have knowledge and what action the Issuer and each Subsidiary Guarantor are taking or propose to take with respect thereto).

(b)              When any Default has occurred and is continuing under this Indenture, the Issuer will promptly send to the Trustee an Officers’ Certificate specifying such event, its status and what action the Issuer is taking or proposes to take with respect thereof.

Section 4.05                 Limitation on Restricted Payments .

(a)              The Issuer will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, make any Restricted Payment unless, at the time of and after giving effect to the proposed Restricted Payment:

(i)                no Default shall have occurred and be continuing or will occur as a consequence thereof;
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(ii)              after giving effect to such Restricted Payment on a pro forma basis, the Issuer would be permitted to incur at least $1.00 of Coverage Debt under Section 4.06(a); and

(iii)             after giving effect to such Restricted Payment on a pro forma basis, the aggregate amount of all Restricted Payments made after the Issue Date (excluding (x) Restricted Payments permitted by clauses (2) through (8) of Section 4.05(b) and (y) Restricted Payments permitted by clause (9) of Section 4.05(b) to the extent that the amount available for Restricted Payments under this clause (iii) would be reduced to less than zero as a result of payments made under such clause (9)), shall not exceed the sum (without duplication) of

(A)              50% of the Consolidated Net Income (or, if Consolidated Net Income shall be a deficit, minus 100% of such deficit) of the Issuer accrued on a cumulative basis during the period (taken as one accounting period) from the beginning of the fiscal quarter during which the Issue Date occurs and ending on the last day of the fiscal quarter immediately preceding the date of such proposed Restricted Payment, plus

(B)              100% of the aggregate net proceeds (including the fair market value of property other than cash as determined by the Issuer in good faith) received by the Issuer subsequent to the initial issuance of the Notes either (i) as a contribution to its common equity capital or (ii) from the issuance and sale (other than to a Subsidiary) of its Qualified Capital Interests, including Qualified Capital Interests issued upon the conversion of Debt, Redeemable Capital Interests or preferred stock of the Issuer, and from the exercise of options, warrants or other rights to purchase such Qualified Capital Interests (other than, in each case, Capital Stock or Debt sold to a Subsidiary of the Issuer and other than Excluded Contributions), plus

(C)              to the extent that any Investment (other than Permitted Investments or Investments in Unrestricted Subsidiaries) that was made on or after the Issue Date is sold for cash or otherwise disposed of, liquidated, redeemed, repurchased or repaid for cash or other assets, or to the extent that the Issuer otherwise realizes any proceeds on the sale of such Investment or proceeds representing the return of capital on such Investment, the lesser of (i) the initial amount of such Investment, or (ii) to the extent not otherwise included in the calculation of Consolidated Net Income of the Issuer for such period, the net cash return of capital or net fair market value of return of capital as determined by the Issuer in good faith with respect to such Investment, less the cost of any such disposition or liquidation, plus

(D)              to the extent that any Unrestricted Subsidiary of the Issuer designated as such on or after the Issue Date is redesignated as a Restricted Subsidiary, the lesser of (i) the fair market value of the Issuer’s Investment in such Subsidiary as of the date of such redesignation as determined by the Issuer in good faith or (ii) such fair market value as of the date on which such Subsidiary was originally designated as an Unrestricted Subsidiary, plus

(E)              $150.0 million.

(b)              The provisions of Section 4.05(a) will not prohibit:

(1)              the payment of any dividend on Capital Stock in the Issuer or a Restricted Subsidiary within 60 days after declaration thereof if at the declaration date such payment was permitted by the provisions of Section 4.05;
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(2)              the purchase, repurchase, redemption, defeasance or other acquisition or retirement of any Qualified Capital Interests of the Issuer by conversion into, or by or in exchange for, Qualified Capital Interests, or out of net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Issuer) of other Qualified Capital Interests of the Issuer;

(3)              the redemption, defeasance, repurchase or acquisition or retirement for value of any Debt of the Issuer or a Subsidiary Guarantor that is subordinate in right of payment to the Notes or the applicable Guarantee out of the net cash proceeds of a substantially concurrent issue and sale (other than to a Subsidiary of the Issuer) of (x) new subordinated Debt of the Issuer or such Subsidiary Guarantor, as the case may be, incurred in accordance with this Indenture or (y) of Qualified Capital Interests of the Issuer;

(4)              the purchase, redemption, retirement or other acquisition for value of Capital Stock of the Issuer held by employees or former employees of the Issuer or any Restricted Subsidiary (or their estates or beneficiaries under their estates) upon death, disability, retirement or termination of employment or alteration of employment status or pursuant to the terms of any agreement under which such Capital Stock was issued; provided, however , that the aggregate cash consideration paid for such purchase, redemption, retirement or other acquisition of such Capital Stock does not exceed $5.0 million in any calendar year; provided further, however , that any unused amounts in any calendar year may be carried forward to one or more future periods subject to a maximum aggregate amount of repurchases made pursuant to this clause (iv) not to exceed $10.0 million in any calendar year; provided, however , that such amount in any calendar year may be increased by an amount not to exceed (A) the cash proceeds received by the Issuer or any of its Restricted Subsidiaries from the sale of Qualified Capital Interests of the Issuer to employees of the Issuer and its Restricted Subsidiaries that occurs after the Issue Date; provided, however , that the amount of such cash proceeds utilized for any such repurchase, retirement, other acquisition or dividend will not increase the amount available for Restricted Payments under clause (iii) of Section 4.05(a); plus (B) the cash proceeds of key man life insurance policies received by the Issuer and its Restricted Subsidiaries after the Issue Date ( provided, however , that the Issuer may elect to apply all or any portion of the aggregate increase contemplated by the proviso of this clause (4) in any calendar year);

(5)              repurchase of Capital Stock deemed to occur upon the exercise of stock options, warrants or other convertible or exchangeable securities;

(6)              cash payment, in lieu of issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for the Capital Stock of the Issuer or a Restricted Subsidiary;

(7)              the declaration and payment of dividends to holders of any class or series of Redeemable Capital Interests of the Issuer or any Restricted Subsidiary issued or incurred in compliance with Section 4.06;

(8)              upon the occurrence of a Change of Control or an Asset Sale, the defeasance, redemption, repurchase or other acquisition of any subordinated Debt pursuant to provisions substantially similar to those described under Section 4.10 and Section 4.11 at a purchase price not greater than 101% of the principal amount thereof (in the case of a Change of Control) or at a percentage of the principal amount thereof not higher than the principal amount applicable to the Notes (in the case of an Asset Sale), plus any accrued and unpaid interest thereon; provided, however , that prior to or contemporaneously with such defeasance, redemption, repurchase or other acquisition, the Issuer has made an Offer to Purchase with respect to the applicable Notes and has repurchased all Notes validly tendered for payment and not withdrawn in connection therewith;
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(9)              to the extent no Default in any payment in respect of principal or interest under the Notes or Event of Default has occurred and is continuing or will occur as a consequence thereof, the payment of regular cash quarterly dividends on the Issuer’s common stock; provided, however , that in no event shall the amount of dividends paid in any calendar year under this clause (9) exceed $200.0 million;

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

(11)              to the extent no Default in any payment in respect of principal or interest under the Notes or an Event of Default has occurred and is continuing or will occur as a consequence thereof, other Restricted Payments not in excess of $50.0 million in the aggregate;

(12)              to the extent no Default in any payment in respect of principal or interest under the Notes or an Event of Default has occurred and is continuing or will occur as a consequence thereof, any Restricted Payment so long as on the date of such Restricted Payment, after giving pro forma effect thereto and to any related transactions as if the same had occurred at the beginning of the Issuer’s most recent four consecutive fiscal quarters for which internal financial statements of the Issuer are available, the Consolidated Debt Ratio would not exceed 2.50 to 1.00; and

(13)              any Restricted Payment made in connection with the Transactions.

(c)              If any Person in which an Investment is made, which Investment constitutes a Restricted Payment when made, thereafter becomes a Restricted Subsidiary in accordance with this Indenture, all such Investments previously made in such Person shall no longer be counted as Restricted Payments for purposes of calculating the aggregate amount of Restricted Payments pursuant to clause (iii) of Section 4.05(a), in each case to the extent such Investments would otherwise be so counted.

(d)              For purposes of this Section 4.05, if a particular Restricted Payment involves a non-cash payment, including a distribution of assets, then such Restricted Payment shall be deemed to be an amount equal to the cash portion of such Restricted Payment, if any, plus an amount equal to the fair market value of the non-cash portion of such Restricted Payment as determined by the Issuer in good faith.
 
Section 4.06                 Limitation on Debt .

(a)              The Issuer will not, and will not permit any of its Restricted Subsidiaries to incur any Debt (including Acquired Debt); provided , however , that the Issuer and any Restricted Subsidiary may incur Debt (including Acquired Debt) if, immediately after giving effect to the incurrence of such Debt and the receipt and application of the proceeds therefrom:

(1)              the Consolidated Fixed Charge Coverage Ratio of the Issuer and its Restricted Subsidiaries would be greater than 2.00 to 1.00; and

(2)              no Default shall have occurred and be continuing at the time or as a consequence of the incurrence of such Debt (any Debt incurred pursuant to this provision being herein referred to as “ Coverage Debt ”); provided, however , that the amount of Debt (other than Acquired Debt) that may be incurred or issued pursuant to the foregoing by Non-Guarantor Subsidiaries shall not exceed $100.0 million at any one time outstanding.
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(b)              Notwithstanding Section 4.06(a), the Issuer and its Restricted Subsidiaries may incur Permitted Debt.

(c)              For purposes of determining any particular amount of Debt under this Section 4.06:
 
 (1)              Debt outstanding under the Credit Agreement and the Sumitomo Credit Agreement on the Issue Date will at all times be treated as incurred pursuant to clause (1) of the definition of Permitted Debt and shall not be permitted to be reclassified and

 (2)              guarantees or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount will not be included.
 
(d)              Except as provided above, for purposes of determining compliance with this Section 4.06, in the event that an item of Debt meets the criteria of more than one of the types of Debt described above, including any Coverage Debt and any category of Permitted Debt, the Issuer, in its sole discretion, shall classify, and from time to time may reclassify, all or any portion of such item of Debt.

(e)              For purposes of determining compliance of any non-U.S. dollar-denominated Debt with this Section 4.06, the amount outstanding under U.S. dollar-equivalent principal amount of Debt denominated in a foreign currency shall at all times be calculated based on the relevant currency exchange rate in effect on the date such Debt was incurred, in the case of any term Debt, or first committed, in the cases of any revolving credit Debt; provided, however , that if such Debt is incurred to Refinance other Debt denominated in the same or different currency, and such Refinancing would cause the applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such Refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such Refinancing Debt does not exceed the principal amount of such indebtedness being Refinanced.

(f)              The accrual of interest, the accretion or amortization of original issue discount and the payment of interest on Debt in the form of additional Debt or payment of dividends on Capital Stock in the forms of additional shares of Capital Stock with the same terms will not be deemed to be an incurrence of Debt or issuance of Capital Stock for purposes of this Section 4.06.

Section 4.07                 Limitation on Liens .

(a)              The Issuer will not, nor will the Issuer permit any Restricted Subsidiary to, issue, assume or guarantee any Debt secured by a Lien upon any Principal Property or upon any shares of stock of any Restricted Subsidiary without effectively providing that the Notes and the Guarantees, together with, if the Issuer so determines, any other indebtedness or obligation then existing or thereafter created, ranking equally in right of payment with the Notes or the Guarantees, shall be secured equally and ratably with, or, at the Issuer’s option, prior to, such Debt so long as such Debt shall be so secured, except that this restriction will not apply to:

 (1)              Liens existing on the Issue Date;
 
 (2)              Liens affecting property of a Person existing at the time it becomes a Restricted Subsidiary or at the time it is merged into or consolidated with the Issuer or a Restricted Subsidiary;
 
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(3)              Liens:

(i)              on property existing at the time of acquisition thereof,

(ii)              to secure payment of all or part of the purchase price thereof,

(iii)            to secure Debt incurred prior to, at the time of or within 12 months after such acquisition for the purpose of financing all or part of the purchase price thereof, or

(iv)            assumed or incurred in connection with the acquisition of property;

(4)              Liens on property to secure all or part of the cost of repairing, altering, constructing, improving, exploring, drilling or developing such property, or to secure Debt incurred to provide funds for such purpose;

(5)              Liens in connection with non-recourse Debt;

(6)              Liens on current assets or other personal property, other than shares of stock of Subsidiaries, to secure loans maturing not more than one year from the date of the creation thereof or to secure any renewal thereof for not more than one year at any one time;

(7)              Liens which secure indebtedness owing by a Restricted Subsidiary to the Issuer or another Restricted Subsidiary of the Issuer;

(8)              Liens on property of any Restricted Subsidiary principally engaged in a financing or leasing business; and
 
(9)              any extension, renewal or replacement, or successive extensions, renewals or replacements, in whole or in part, of any Lien referred to in the foregoing or of any Debt secured thereby; provided that the principal amount of Debt secured thereby shall not, with respect to Liens referred to in clauses (1) through (4) above, exceed the principal amount of Debt so secured at the time of such extension, renewal or replacement, and that such extension, renewal or replacement Lien shall be limited to all or part of substantially the same property which secured the Lien extended, renewed or replaced, plus improvements on such property.

(b)              Notwithstanding 4.07(a), the Issuer and any one or more of its Restricted Subsidiaries may, without securing the Notes and the Guarantees, issue, assume or guarantee Debt secured by Liens which would not be permitted by Section 4.07(a) in an aggregate amount which, together with:

(1) the aggregate principal amount of all of the Issuer’s other Debt and Debt of its Restricted Subsidiaries secured by a Lien upon any Principal Property or upon any shares of stock of any Restricted Subsidiary that would not be permitted to be secured by Liens under Section 4.07(a); and

(2) the Attributable Debt in respect of Sale and Lease-Back Transactions existing at such time (other than Sale and Lease-Back Transactions in which the property involved would have been permitted to be secured under Section 4.07(a) or the proceeds of which have been applied in accordance with Section 4.08(a)(2) to the retirement of long-term indebtedness);
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does not at the time exceed 10% of Consolidated Net Tangible Assets.

(c)              For purposes of this Section 4.07 and Section 4.08, the sale or other transfer of any interest in property of the character commonly referred to as a “production payment,” is not considered Debt secured by a Lien.

Section 4.08                  Limitation on Sale and Lease-Back Transactions. (a)      The Issuer will not, nor will the Issuer permit any Restricted Subsidiary to, enter into any arrangement with any Person providing for the leasing by the Issuer or any Restricted Subsidiary of any Principal Property, except for (x) temporary leases for terms of not more than three years, (y) leasing arrangements between the Issuer and a Subsidiary or (z) leasing arrangements between Subsidiaries, title to which property has been or is to be sold or transferred by the Issuer or such Restricted Subsidiary to such Person (such transaction, a “ Sale and Lease-Back Transaction ”), unless the proceeds of any such sale are at least equal to the fair value, as determined by the Board of Directors of the Issuer, of such property and either:

(1) the Issuer or such Restricted Subsidiary would be permitted under Section 4.07(a) to secure Debt by a Lien on the Principal Property to be leased in an amount at least equal to the Attributable Debt in respect of such Sale and Lease-Back Transaction without equally and ratably securing the Notes pursuant to Section 4.07; or

(2) the Issuer applies an amount equal to the fair value of the property so leased to the retirement, within 90 days of the effective date of any such Sale and Lease-Back Transaction, of the Issuer’s long-term indebtedness which ranks senior or equal to the Notes or the related Guarantee (other than indebtedness held by the Issuer or any of its Subsidiaries).

For the avoidance of doubt, Sale and Lease-Back Transactions do not include arrangements with governmental bodies entered into for the purpose of financing the purchase price or the cost of constructing or improving the property subject thereto.

(b)              Notwithstanding the provisions of Section 4.08(a), the Issuer or any of its Restricted Subsidiaries may enter into any Sale and Lease-Back Transaction which would not be permitted under Section 4.08(a) if the amount of the Attributable Debt in respect of such Sale and Lease-Back Transaction, together with:

(1) all of the Issuer’s Debt and Debt of its Restricted Subsidiaries secured by a Lien on Principal Property or shares of stock of any Restricted Subsidiary and
not permitted under Section 4.07(a); and

(2) all other Attributable Debt in respect of Sale and Lease-Back Transactions existing at such time (other than Sale and Lease-Back Transactions in which the property involved would have been permitted to have a Lien in accordance with Section 4.07(a) or the proceeds of which have been applied in accordance with Section 4.08(a)(2) to the retirement of long-term indebtedness);

does not at the time exceed 10% of Consolidated Net Tangible Assets.
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Section 4.09                  Future Guarantors .
 
(a)              After the Issue Date, the Issuer will cause each Restricted Subsidiary of the Issuer that guarantees (i) the Credit Agreement or (ii) any Material Capital Markets Debt issued by the Issuer or any Subsidiary Guarantor to, within 45 days of the incurrence of such guarantee, execute and deliver to the Trustee a supplemental indenture to this Indenture, which may be in the form of Exhibit C, hereto pursuant to which such Restricted Subsidiary will guarantee payment of the Notes on the same terms and conditions as those set forth in this Indenture.

(b)              Each Guarantee of a Subsidiary Guarantor shall be released in accordance with the provisions of Section 11.06.

(c)              Any entity that makes a payment under its Guarantee will be entitled upon payment in full of all obligations that are guaranteed under this Indenture to a contribution from each other Subsidiary Guarantor in an amount equal to such other Subsidiary Guarantor’s pro rata portion of such payment based on the respective net assets of all the Subsidiary Guarantors at the time of such payment determined in accordance with GAAP.

Section 4.10                  Offer to Repurchase Upon Change of Control. If a Change of Control occurs after the Merger Closing Date, unless the Issuer has exercised its right to redeem all Notes pursuant to Sections 3.03 and 3.07, the Issuer will make an offer to each Holder to repurchase all or any part (in multiples of $1,000 principal amount) of that Holder’s Notes (the “ Change of Control Offer ”) at a repurchase price in cash equal to 101% of the aggregate principal amount of Notes repurchased plus any accrued and unpaid interest on the Notes repurchased to the date of purchase (the “ Change of Control Payment ”).

(b)              Within 30 days following any Change of Control, unless the Issuer has exercised its right to redeem the Notes pursuant to Sections 3.03 and 3.07, or, at the Issuer’s option, prior to any Change of Control, but after the public announcement of the Change of Control, the Issuer will mail a notice to each Holder or otherwise deliver notice in accordance with the applicable procedures of the Depositary, with a copy to the Trustee, describing the transaction or transactions that constitute or may constitute the Change of Control and stating:
 
(1)              that a Change of Control Offer is being made pursuant to this Section 4.10, the expiration time for such Change of Control Offer (which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed or otherwise delivered in accordance with the applicable procedures of the Depositary) and that all Notes properly tendered pursuant to such Change of Control Offer will be accepted for purchase by the Issuer at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest, if any, to the date of purchase (subject to the right of Holders of record on the applicable Record Date to receive interest due on the Change of Control Payment Date);

(2)              the purchase date (which shall be no later than five Business Days after the date such Change of Control Offer expires) (the “ Change of Control Payment Date ”);

(3)              that Notes must be tendered in integral multiples of $1,000, and any Note not properly tendered will remain outstanding and continue to accrue interest (subject to clause (7) below);

(4)              that, unless the Issuer defaults in the payment of the Change of Control Payment, any Note accepted for payment pursuant to the Change of Control Offer will cease to accrue interest on and after the Change of Control Payment Date;
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(5)              that Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender such Notes, with the form entitled “Option of Holder to Elect Purchase” attached to such Notes completed, to the Paying Agent specified in the notice at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment Date;

(6)              that Holders shall be entitled to withdraw their tendered Notes and their election to require the Issuer to purchase such Notes; provided that the Paying Agent receives at the address specified in the notice, not later than the expiration time of such Change of Control Offer, a telegram, facsimile transmission or letter setting forth the name of the Holder of the Notes, the principal amount of Notes tendered for purchase and a statement that such Holder is withdrawing its tendered Notes and its election to have such Notes purchased;

(7)              that, if a Holder is tendering less than all of its Notes, such Holder will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (the unpurchased portion of the Notes must be equal to $2,000 or an integral multiple of $1,000 in excess thereof);

(8)              that the Change of Control Offer is conditioned on the Change of Control occurring on or prior to the Change of Control Payment Date, if applicable; and

(9)              the other procedures, as determined by the Issuer, consistent with this Section 4.10 that a Holder must follow.

The notice, if mailed or otherwise delivered in a manner herein provided, shall be conclusively presumed to have been given, whether or not the Holder receives such notice.  If (A) the notice is mailed in a manner herein provided and (B) any Holder fails to receive such notice or a Holder receives such notice but it is defective, such Holder’s failure to receive such notice or such defect shall not affect the validity of the proceedings for the purchase of the Notes as to all other Holders that properly received such notice without defect.

(c)              On the Change of Control Payment Date, the Issuer will, to the extent lawful:

(1)              accept for payment all Notes or portions of Notes (in integral multiples of $1,000)  properly tendered pursuant to the Change of Control Offer; provided that if, following repurchase of a portion of a Note, the remaining principal amount of such Note outstanding immediately after such repurchase would be less than $2,000, then the portion of such Note so repurchased shall be reduced so that the remaining principal amount of such Note outstanding immediately after such repurchase is $2,000;

(2)              deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions of Notes properly tendered; and

(3)              deliver or cause to be delivered to the Trustee for cancellation the Notes properly accepted, together with an Officers’ Certificate stating the aggregate principal amount of Notes being purchased by the Issuer in accordance with this Section 4.10.

(d)              The Paying Agent will promptly mail (or otherwise deliver in accordance with the applicable procedures of DTC) to each Holder of Notes properly tendered the Change of Control Payment for such Notes, and the Trustee will promptly authenticate and mail (or otherwise deliver in accordance with the applicable procedures of DTC) (or cause to be transferred by book entry) to each Holder a new Note (it being understood that, notwithstanding anything in this Indenture to the contrary, no Opinion of Counsel or Officers’ Certificate will be required for the Trustee to authenticate and mail or deliver such new Note) equal in principal amount to any unpurchased portion of any Notes surrendered; provided that each new Note will be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof.
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(e)              If the Change of Control Payment Date is on or after a Record Date and on or before the related Interest Payment Date, any accrued and unpaid interest to the Change of Control Payment Date will be paid on the Change of Control Payment Date to the Person in whose name such Note is registered at the close of business on such Record Date.

(f)              The Issuer will not be required to make a Change of Control Offer upon a Change of Control if a third party makes a Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 4.10 for a Change of Control Offer made by the Issuer and such third party purchases all Notes properly tendered and not withdrawn under such Change of Control Offer.

(g)              Notwithstanding anything to the contrary contained herein, 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 a Change of Control at the time of launching the Change of Control Offer.

(h)              The Issuer will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of any Notes as a result of a Change of Control.  To the extent that the provisions of any securities laws or regulations conflict with this Section 4.10, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 4.10 by virtue of such conflict.

(i)              Other than as specifically provided in this Section 4.10, any purchase pursuant to this Section 4.10 shall be made pursuant to the provisions of Sections 3.02, 3.05 and 3.06.

Section 4.11                  Limitation on Asset Sales .

(a)              The Issuer will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless :

(1)              the Issuer (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the fair market value of the assets or Capital Stock issued or sold or otherwise disposed of as determined by the Issuer in good faith; and

(2)              except in the case of a Permitted Asset Swap, at least 75% of the consideration received in the Asset Sale by the Issuer or such Restricted Subsidiary is in the form of cash or Eligible  Cash Equivalents.

For the purposes of this Section 4.11(a), the following will be deemed to be cash:

(i)              any liabilities, as shown on the most recent consolidated balance sheet of the Issuer or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Guarantee) that are assumed by the transferee of any such assets pursuant to a customary assignment and assumption agreement that releases the Issuer or such Restricted Subsidiary from further liability;
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(ii)              any securities, notes or other obligations received by the Issuer or any such Restricted Subsidiary from such transferee that are converted by the Issuer or such Restricted Subsidiary into cash within 180 days of their receipt to the extent of the cash received in that conversion; and

(iii)              any Designated Non-cash Consideration received by the Issuer or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value as determined by the Issuer in good faith, taken together with all other Designated Non-cash Consideration received pursuant to this clause (iii) that is at that time outstanding, not to exceed $50.0 million 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)              Within 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Issuer (or the applicable Restricted Subsidiary, as the case may be) may apply such Net Cash Proceeds at its option:
 
(A)              to permanently repay (a) Debt under the Credit Agreement and, if the obligation repaid is revolving credit Debt, to correspondingly reduce commitments with respect thereto and/or (b) other unsecured Debt ranking pari passu in right of payment with the Notes (provided that if the Issuer shall so reduce obligations under such other unsecured Debt, other than the Notes, the Issuer will (x) equally and ratably reduce obligations under the Notes under any applicable optional redemption provisions or by open market purchases or (y) make an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders of to purchase at a purchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest and additional interest, if any, the pro rata principal amount of Notes);

(B)              to acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes a Restricted Subsidiary of the Issuer;

(C)              to make a capital expenditure in or that is used or useful in a Permitted Business or to make expenditures for maintenance, repair or improvement of existing properties and assets;

(D)              to acquire other assets (other than inventory) that are used or useful in a Permitted Business;

(E)              to repay or repurchase Debt secured by the assets of the Issuer or any Restricted Subsidiaries; or

(F)              any combination of the foregoing.

(c)              Any Net Cash Proceeds from Asset Sales that are not applied, invested or subject to an offer to repurchase as provided in Section 4.11(b) will constitute “ Excess Proceeds .” When the aggregate amount of Excess Proceeds with respect to the Notes exceeds $50.0 million, the Issuer will, within 30 days, make an offer to purchase to all Holders of such Notes (an “ Asset Sale Offer ”), and to all holders of other Debt containing provisions similar to those set forth in this Indenture with respect to assets sales, to purchase the maximum aggregate principal amount of such Notes and such other Debt that may (including, without limitation, the 2025 Notes), be purchased out of the Excess Proceeds. The offer price for the Notes in any Asset Sale Offer will be equal to 100% of the principal amount plus accrued and unpaid interest to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer in respect of such Notes, the Issuer may use those funds for any purpose not otherwise prohibited by this Indenture and they will no longer constitute Excess Proceeds. If the aggregate principal amount of Notes and other Debt tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Excess Proceeds will be allocated between such Notes and such other Debt based on the principal amount (or accreted value, if applicable) of such Notes and such other Debt tendered and the Trustee will select the Notes to be purchased on a pro rata basis among all such Notes tendered (subject to DTC procedures). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
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(d)              The Issuer will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of any Notes as a result of an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale Offer provisions of the Notes, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Asset Sale Offer provisions of the Notes by virtue of such conflict.

Section 4.12                  Effectiveness of Covenants .

(a)              Following the first day (such date, the “ Termination Date ”):

(1)              the Notes have a rating of Investment Grade from both S&P and Moody’s and

(2)              no Default has occurred and is continuing under this Indenture, the Issuer and its Restricted Subsidiaries shall no longer be subject to the provisions of Sections 4.05, 4.06, 4.09 and 4.11.

(b)              In the event that the Notes’ credit rating is downgraded from Investment Grade by any Rating Agency, the provisions of Sections 4.05, 4.06, 4.09 and 4.11 will not thereafter be reinstated.

(c)              Promptly following the Termination Date, the Issuer shall provide an Officers’ Certificate to the Trustee regarding such occurrence. The Trustee shall have no obligation to independently determine or verify if a Termination Date has occurred or notify the Holders of the Termination Date. The Trustee may provide a copy of such Officers’ Certificate to any Holder upon request.

ARTICLE 5

SUCCESSORS

Section 5.01                  Consolidation, Merger, Conveyance, Transfer or Lease .

(a)              The Issuer will not merge or consolidate with any other Person or sell or convey all or substantially all of its assets to any Person, unless :

(1)              the successor Person (if other than the Issuer) (the “ Successor Issuer ”) shall be a corporation organized under the laws of the United States or any state thereof and shall expressly assume (a) the due and punctual payment of the principal of and premium, if any, and interest on all the Notes, according to their tenor, and the due and punctual performance and observance of all of the covenants and conditions under this Indenture to be performed or observed by the Issuer, by supplemental indenture satisfactory in form to the Trustee, executed and delivered to the Trustee by such Person and (b) all obligations of the Issuer under the Registration Rights Agreement, by a written instrument satisfactory in form to the parties thereto, executed and delivered to such parties by such Person;
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(2)              the Successor Issuer shall not, immediately after such merger or consolidation, or such sale or conveyance, be in default in the performance of any such covenant or condition;

(3)              each Subsidiary Guarantor (unless such Subsidiary Guarantor is the other party to the transactions described above, in which case the preceding clause (1) shall apply) shall have by supplemental indenture confirmed that the applicable Guarantee shall apply to such Successor Issuer’s obligations under this Indenture and the Notes and shall have by written agreement confirmed that its obligations under the Registration Rights Agreement shall continue to be in effect; and

(4)              the Issuer shall have provided the Trustee with an Opinion of Counsel and Officers’ Certificate each stating that such merger or consolidation, or such sale or conveyance, and such supplemental indenture, if any, comply with this Indenture.

(b)              Subject to the limitations set forth in this Indenture, the Successor Issuer will succeed to, and be substituted for, the Issuer under this Indenture, the Notes and the Registration Rights Agreement.

(c)              The Issuer will not permit any Subsidiary Guarantor to merge or consolidate with any other Person or sell or convey all or substantially all of its assets to any Person, unless:

(1)              (A)             the successor Person (if other than the Issuer or such Subsidiary Guarantor) (the “ Successor Subsidiary Guarantor ”) shall expressly assume by supplemental indenture satisfactory in form to the Trustee, executed and delivered to the Trustee by such Person all the obligations of such Subsidiary Guarantor under the applicable Guarantee and this Indenture;

(B)              the Successor Subsidiary Guarantor shall not, immediately after such merger or consolidation, or such sale or conveyance, be in default in the performance of any such covenant or condition; and

(C)              the Successor Subsidiary Guarantor shall have provided the Trustee with an Opinion of Counsel and Officers’ Certificate each stating that such merger or consolidation, or such sale or conveyance, and such supplemental indenture, if any, comply with this Indenture; or

(2)              the merger, consolidation, sale or conveyance complies with Section 4.11.


(d)              Notwithstanding anything in the foregoing provisions of this Section 5.01 to the contrary, this Section 5.01 shall not apply to the transactions contemplated by the Separation Agreement or by the Merger Agreement.
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Section 5.02                  Successor Entity Substituted .

Upon any merger, consolidation or sale or conveyance of all or substantially all of the assets of any Subsidiary Guarantor or the Issuer, as the case may be, in accordance with Section 5.01, such Subsidiary Guarantor or the Issuer, as the case may be, will be released from its obligations under this Indenture, the Notes, the Guarantees and the Registration Rights Agreement, as applicable, and the Successor Issuer or the Successor Subsidiary Guarantor, as the case may be, will succeed to, and be substituted for, and may exercise every right and power of, such Subsidiary Guarantor or the Issuer, as the case may be, under this Indenture, the Notes, the Registration Rights Agreement and the Guarantees, as applicable.

ARTICLE 6

DEFAULTS AND REMEDIES
 
Section 6.01                  Events of Default .

Each of the following is an “ Event of Default ”:

(1)              default in the payment in respect of the principal of, or premium, if any, on any Note when due and payable (whether at Stated Maturity or upon repurchase, acceleration,  optional redemption or otherwise);

(2)              default in the payment of any interest (including Additional Interest (as required by the Registration Rights Agreement)) upon any Note when it becomes due and payable, and continuance of such default for a period of 30 days;

(3)              default in the performance, or breach, of any covenant or agreement of the Issuer or any Restricted Subsidiary in this Indenture (other than a covenant or agreement a default in which performance or which breach is specifically dealt with in clauses (1) or (2) above), and continuance of such default or breach for a period of 60 days after written notice thereof has been given to the Issuer by the Trustee or to the Issuer and the Trustee by the Holders of at least 25% in aggregate principal amount of the outstanding Notes ( provided that, and without limiting the foregoing in this clause (3), in the case of a default or breach of any covenant or agreement described under Section 4.03, no Event of Default shall occur (and any such default or breach shall be deemed to not have occurred for all purposes under this Indenture) with respect to any failure to furnish or file any information or report required thereunder if the Issuer files or furnishes such information or report within 120 days after the Issuer was required (or would have been required) to file the same pursuant to the Commission’s rules and regulations);

(4)              the applicable Guarantee ceases to be in full force and effect (except as contemplated by this Indenture) or is declared null and void in a judicial proceeding or a Subsidiary Guarantor denies in writing or disaffirms in writing its obligations under this Indenture or Guarantee, other than by reason of the termination of this Indenture or the release of such Guarantee in accordance with the terms of this Indenture;

(5)              the Issuer or a Significant Subsidiary shall (i) voluntarily commence any proceeding or file any petition seeking relief under Title 11 of the United States Code or any other federal or state bankruptcy, insolvency or similar law, (ii) consent to the institution of, or fail to controvert in a timely and appropriate manner, any such proceeding or the filing of any such petition, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator or similar official for the Issuer or a Significant Subsidiary or for a substantial part of its property, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors, (vi) admit in writing its inability or fail generally to pay its debts as they become due or (vii) take corporate action for the purpose of effecting any of the foregoing; or
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(6)              the entry of an order or decree by a court having competent jurisdiction in the premises for (i) relief in respect of the Issuer or a Significant Subsidiary or a substantial part of the property of the Issuer or a Significant Subsidiary, under Title 11 of the United States Code or any other federal or state bankruptcy, insolvency or similar law, (ii) the appointment of a receiver, trustee, custodian, sequestrator or similar official for the Issuer or a Significant Subsidiary or for a substantial part of the property of the Issuer or a Significant Subsidiary or (iii) the winding-up or liquidation of the Issuer or a Significant Subsidiary; and such order or decree shall continue unstayed and in effect for 60 days.

Section 6.02                  Acceleration .

(a)              If an Event of Default (other than an Event of Default described in clauses (5) and (6) of Section 6.01) with respect to the Issuer occurs and is continuing, then and in every such case, unless the principal of all the Notes have already become due and payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount of the then outstanding Notes may declare the principal of, premium, if any, and accrued and unpaid interest on the Notes to be due and payable immediately by a notice in writing to the Issuer (and to the Trustee if given by such Holders).  Upon such declaration, such principal, premium, if any, and accrued and unpaid interest, if any, will be due and payable.

(b)              If, at any time after the principal amount of the Notes shall have been so declared to be immediately due and payable, and before any judgment or decree for the payment of the moneys due on account of such declaration shall have been obtained or entered, all defaults under this Indenture, other than the nonpayment of principal of or premium, if any, or accrued interest on the Notes which shall have become due by acceleration shall have been remedied—then and in every such case the Holders of a majority in aggregate principal amount of the Notes then outstanding, by written notice to the Issuer and to the Trustee, may waive all defaults and rescind and annul such declaration and its consequences; but no such waiver or rescission and annulment shall extend or shall, affect any subsequent default, or shall impair any right consequent thereon.

(c)              The Trustee may withhold from Holders notice of any Default (except any Default in the payment of principal of, premium, if any, or interest on the Notes) if the Trustee determines that withholding notice is in the interests of Holders to do so.

(d)              In case an Event of Default described in clauses (5) or (6) of Section 6.01 with respect to the Issuer occurs, the principal of, premium, if any, and accrued and unpaid interest, if any, on all the then outstanding Notes will ipso facto become immediately due and payable without any declaration or other act on the part of the Trustee or any Holders.

Section 6.03                  Other Remedies .

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

The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding.  A delay or omission by the Trustee or any Holder of a Note in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default.  All remedies are cumulative to the extent permitted by law.
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Section 6.04                  Waiver of Past Defaults .

The Holders of not less than a majority in aggregate principal amount of the then outstanding Notes by written notice to the Trustee may on behalf of the Holders of all Notes waive any past Default and its consequences, except a Default:

(1)              in any payment in respect of the principal of (or premium, if any) or interest on any Notes (including any Note which is required to have been purchased pursuant to a Change of Control which has been made by the Issuer); or

(2)              in respect of a covenant or provision hereof which cannot be modified or amended without the consent of the Holder of each outstanding Note issued thereunder that is affected,

provided that, subject to Section 6.02, the Holders of a majority in principal amount of the then outstanding Notes may rescind an acceleration and its consequences, including any related payment default that resulted from such acceleration.  Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured for every purpose of this Indenture, but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.

Section 6.05                  Control by Majority .

The Holders of a majority in principal amount of the outstanding Notes 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.  However, the Trustee may refuse to follow any direction that conflicts with law, this Indenture, the Notes or any Guarantee, or that the Trustee determines in good faith is unduly prejudicial to the rights of any other Holder or that would involve the Trustee in personal liability.

Section 6.06                  Limitation on Suits .

Subject to Section 6.07, no Holder will have any right to institute any proceeding with respect to this Indenture or for any remedy hereunder unless :

(1)              such Holder has previously given to the Trustee written notice of a continuing Event of Default;

(2)              the Holders of at least 25% in aggregate principal amount of the then outstanding Notes have made written request to the Trustee;

(3)              such Holders have provided security and indemnity satisfactory to the Trustee against any loss, liability or expense, to institute such proceeding as Trustee;

(4)              the Trustee has not complied with such request within 60 days after the receipt of the request and the offer of security or indemnity; and
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(5)              the Holders of a majority in aggregate principal amount of the then outstanding Notes have not given the Trustee a direction inconsistent with such request within such 60-day period.

The limitations in this Section 6.06 do not apply, however, to a suit instituted by a Holder directly (as opposed to through the Trustee) for enforcement of payment of the principal of (and premium, if any) or interest on such Note on or after the respective due dates expressed in such Note.

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

Section 6.07                  Rights of Holders to Receive Payment .

Notwithstanding any other provision of this Indenture, the right of any Holder to receive payment of principal, premium, if any, and interest on its Note, on or after the respective due dates expressed or provided for in such Note (including in connection with an Asset Sale Offer or a Change of Control Offer), 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 Issuer and any other obligor on the Notes for the whole amount of principal, premium, if any, and interest remaining unpaid on the Notes, together with interest on overdue principal and, to the extent lawful, interest and such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee and its agents and counsel.

Section 6.09                  Restoration of Rights and Remedies .

If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceedings, the Issuer, the Subsidiary Guarantors, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding has been instituted.

Section 6.10                  Rights and Remedies Cumulative .

Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes in Section 2.07, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy are, to the extent permitted by law, cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise.  The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
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Section 6.11                  Delay or Omission Not Waiver .

No delay or omission of the Trustee or of any Holder to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein.  Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.

Section 6.12                  Trustee May File Proofs of Claim .

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

Section 6.13                  Priorities .

If the Trustee collects any money or property pursuant to this Article 6, it shall pay out the money in the following order:

(1)              to the Trustee and the Agents and their respective agents and attorneys for amounts due under Section 7.07, including payment of all reasonable compensation, expenses and liabilities incurred, and all advances made, by the Trustee and the costs and expenses of collection;

(2)              to Holders for amounts due and unpaid on the Notes for principal, premium, if any, and interest ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal, premium, if any, and interest, respectively; and

(3)              to the Issuer or to such party as a court of competent jurisdiction shall direct, including a Subsidiary Guarantor, if applicable.

The Trustee may fix a record date and payment date for any payment to Holders pursuant to this Section 6.13.  Promptly after any record date is set pursuant to this Section 6.13, the Trustee shall cause notice of such record date and payment date to be given to the Issuer and to each Holder in the manner set forth in Section 12.02.
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Section 6.14                  Undertaking for Costs .

In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee (acting in any capacity hereunder), a court in its discretion may require the filing by any party litigant in such suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant.  This Section 6.14 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 outstanding Notes.

ARTICLE 7

TRUSTEE
Section 7.01                  Duties of Trustee .

(a)              If an Event of Default has occurred and is continuing, the Trustee will exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care in its 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 duties of the Trustee shall be determined solely by the express provisions of this Indenture and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and

(2)              in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture.  However, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall 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 liabilities for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:

(1)              this paragraph does not limit the effect of paragraph (b) of this Section 7.01;

(2)              the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved in a court of competent jurisdiction in a final non-appealable order 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)              Whether or not therein expressly so provided, every provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (a), (b) and (c) of this Section 7.01.
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(e)              Subject to this Article 7, the Trustee will be under no obligation to exercise any of the rights or powers under this Indenture, the Notes and the Guarantees at the request or direction of any of the Holders unless such Holders have offered to the Trustee indemnity or security satisfactory to it against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction.

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

Section 7.02                  Rights of Trustee .

(a)              The Trustee may conclusively rely upon any document believed by it to be genuine and to have been signed or presented by the proper Person.  The Trustee need not investigate any fact or matter stated in the document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine in good faith to make such further inquiry or investigation, it shall incur no liability or additional liability of any kind by reason of such inquiry or investigation or lack thereof.

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

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

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

(e)              Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Issuer or a Subsidiary Guarantor shall be sufficient if signed by an Officer of the Issuer or such Subsidiary Guarantor.

(f)              None of the provisions of this Indenture shall require the Trustee to expend or risk its own funds or otherwise to incur any liability, financial or otherwise, in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or indemnity reasonably satisfactory to it against such risk or liability is not assured to it.

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

(h)              In no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.
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(i)              The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, any Agent, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder.

(j)              The Trustee shall not at any time be under any duty or responsibility to any Holders to determine whether the Additional Interest is payable and the amount thereof.

(k)              The Trustee may request that the Issuer deliver an Officers’ Certificate setting forth the names of individuals or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officers’ Certificate may be signed by any person authorized to sign an Officers’ Certificate, including any Person specified as so authorized in any such certificate previously delivered and not superseded.

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

Section 7.03                  Individual Rights of Trustee .

The Trustee or any Agent in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Issuer or any affiliate of the Issuer with the same rights it would have if it were not Trustee or such Agent.  However, in the event that the Trustee acquires any conflicting interest within the meaning of Trust Indenture Act Section 310(b) it must eliminate such conflict within 90 days, apply to the SEC for permission to continue as trustee (if this Indenture has been qualified under the Trust Indenture Act) or resign.  Any Agent may do the same with like rights and duties.  The Trustee is also subject to Sections 7.10 and 7.11.

Section 7.04                  Trustee’s Disclaimer .

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

Section 7.05                  Notice of Defaults .

If a Default occurs and is continuing and is known to the Trustee, the Trustee will mail to each Holder a notice of the Default within 90 days after it occurs.  Except in the case of an Event of Default specified in clauses (1) or (2) of Section 6.01, the Trustee may withhold from the Holders notice of any Default or Event of Default if the Trustee determines in good faith that withholding the notice is in the interest of the Holders.

Section 7.06                  Reports by Trustee to Holders of the Notes .

(a)              Within 60 days after each May 15, beginning with the May 15 following the date of this Indenture, and for so long as Notes remain outstanding, the Trustee shall deliver to the Holders of the Notes a brief report dated as of such reporting date that complies with Trust Indenture Act Section 313(a) (but if no event described in Trust Indenture Act Section 313(a) has occurred within the twelve months preceding the reporting date, no report need be transmitted).  The Trustee also shall comply with Trust Indenture Act Section 313(b)(2).
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(b)              A copy of each report at the time of its delivery to the Holders shall be mailed to the Issuer and filed with the Commission and each national securities exchange on which the Notes are listed in accordance with Trust Indenture Act Section 313(d).  The Issuer shall promptly notify the Trustee in writing in the event the Notes are listed on any national securities exchange or delisted therefrom.

Section 7.07                            Compensation and Indemnity .

(a)              The Issuer and the Subsidiary Guarantors, jointly and severally, shall pay to the Trustee acting in any capacity hereunder and any Agent from time to time such compensation for its acceptance of this Indenture and services hereunder as the parties shall agree in writing from time to time.  The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust.  The Issuer shall reimburse the Trustee promptly upon request for all reasonable disbursements, advances and expenses incurred or made by it in addition to the compensation for its services.  Such expenses shall include the reasonable compensation, disbursements and expenses of the Trustee’s and any Agent’s agents and counsel.  The Trustee shall provide the Issuer reasonable notice of any expenditure not in the ordinary course of business.

(b)              The Issuer and the Subsidiary Guarantors, jointly and severally, shall indemnify the Trustee acting in any capacity hereunder and any Agent for, and hold each of the Trustee or Agent and any predecessor harmless against, any and all loss, damage, claims, liability or expense (including attorneys’ fees and expenses) incurred by it in connection with the acceptance or administration of this trust and the performance of its duties hereunder (including the costs and expenses of enforcing this Indenture against the Issuer or any Subsidiary Guarantor (including this Section 7.07)) or defending itself against any claim whether asserted by any Holder, the Issuer or any Subsidiary Guarantor, or liability in connection with the acceptance, exercise or performance of any of its powers or duties hereunder).  The Trustee shall notify the Issuer promptly of any claim for which it may seek indemnity.  Failure by the Trustee to so notify the Issuer shall not relieve the Issuer of its obligations hereunder.  The Issuer shall defend the claim and the Trustee may have separate counsel and the Issuer shall pay the fees and expenses of such counsel.  The Issuer need not reimburse any expense or indemnify against any loss, liability or expense incurred by the Trustee through the Trustee’s own willful misconduct, negligence or bad faith.

(c)              The obligations of the Issuer and the Subsidiary Guarantors under this Section 7.07 shall survive the satisfaction and discharge of this Indenture or the earlier resignation or removal of the Trustee and the provisions of this Article 7, as applicable, shall also apply to any Agent acting hereunder.

(d)              To secure the payment obligations of the Issuer and the Subsidiary Guarantors in this Section 7.07, the Trustee shall have a Lien prior to the Notes on all money or property held or collected by the Trustee, except that held in trust to pay principal and interest on particular Notes.  Such Lien shall survive the satisfaction and discharge of this Indenture or the earlier resignation or removal of the Trustee.

(e)              When the Trustee incurs expenses or renders services after an Event of Default specified in Section 6.01(5) or (6) occurs, the expenses and the compensation for the services (including the fees and expenses of its agents and counsel) are intended to constitute expenses of administration under any Bankruptcy Law.
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Section 7.08                  Replacement of Trustee .

(a)              A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustee’s acceptance of appointment as provided in this Section 7.08.  The Trustee may resign in writing at any time by giving 30 days’ prior notice of such resignation to the Issuer and be discharged from the trust hereby created by so notifying the Issuer.  The Holders of a majority in aggregate principal amount of the then outstanding Notes may remove the Trustee by so notifying the Trustee and the Issuer in writing.  The Issuer may remove the Trustee if:

(1)              the Trustee fails to comply with Section 7.10;

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

(3)              a receiver or public officer takes charge of the Trustee or its property; or

(4)              the Trustee becomes incapable of acting hereunder.

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

(c)              If a successor Trustee does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee (at the Issuer’s expense), the Issuer or the Holders of at least 10% in aggregate principal amount of the then outstanding Notes may petition any court of competent jurisdiction for the appointment of a successor Trustee.

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

(e)              A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Issuer.  Thereupon, the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture.  The successor Trustee shall mail a notice of its succession to Holders.  The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee; provided that all sums owing to the Trustee hereunder have been paid and such transfer shall be subject to the Lien provided for in Section 7.07.  Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the Issuer’s obligations under Section 7.07 shall continue for the benefit of the retiring Trustee. Any resigning or removed Trustee shall have no liability or responsibility for the action or inaction of any successor Trustee.

(f)              As used in this Section 7.08, the term “Trustee” shall also include each Agent.

Section 7.09       Successor Trustee by Merger, etc .

If the Trustee consolidates, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation or national banking association, the successor corporation or national banking association without any further act shall be the successor Trustee, subject to Section 7.10.
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Section 7.10                  Eligibility; Disqualification .

(a)              There shall at all times be a Trustee hereunder that is a corporation or national banking association organized and doing business under the laws of the United States or of any state thereof that is authorized under such laws to exercise corporate trustee power, that is subject to supervision or examination by federal or state authorities and that has a combined capital and surplus of at least $50,000,000 as set forth in its most recent published annual report of condition.

(b)              This Indenture shall always have a Trustee who satisfies the requirements of Trust Indenture Act Sections 310(a)(1), (2) and (5).  The Trustee is subject to Trust Indenture Act Section 310(b).

Section 7.11                  Preferential Collection of Claims Against the Issuer .

The Trustee is subject to Trust Indenture Act Section 311(a), excluding any creditor relationship listed in Trust Indenture Act Section 311(b).  A Trustee who has resigned or been removed shall be subject to Trust Indenture Act Section 311(a) to the extent indicated therein.

ARTICLE 8

DEFEASANCE AND COVENANT DEFEASANCE

Section 8.01                  Option to Effect Defeasance or Covenant Defeasance .

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

Section 8.02                  Defeasance and Discharge .

(a)              Upon the Issuer’s exercise under Section 8.01 of the option applicable to this Section 8.02, the Issuer and the Subsidiary Guarantors shall, subject to the satisfaction of the conditions set forth in Section 8.04, be deemed to have been discharged from their obligations with respect to the Indenture, all outstanding Notes and Guarantees on the date the conditions set forth below are satisfied (“ Defeasance ”).  For this purpose, Defeasance means that the Issuer shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes, which shall thereafter be deemed to be “outstanding” only for the purposes of Section 8.05 and the other Sections of this Indenture referred to in clauses (1) through (5) below, and to have satisfied all of its other obligations under such Notes and this Indenture, including that of the Subsidiary Guarantors (and the Trustee, on demand of and at the expense of the Issuer, shall execute proper instruments acknowledging the same), except for the following provisions which shall survive until otherwise terminated or discharged hereunder:

(1)              the rights of Holders to receive payments in respect of the principal of and premium, if any, and interest on the Notes when such payments are due;

(2)              the Issuer’s obligations with respect to the Notes concerning issuing temporary Notes, registration of Notes, mutilated, destroyed, lost or stolen Notes and the maintenance of an office or agency for payment and money for security payments held in trust;

(3)              the rights, powers, trusts, duties and immunities of the Trustee;

(4)              the Issuer’s right of optional redemption pursuant to Section 3.07; and
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(5)              this Section 8.02.

(b)              Following the Issuer’s exercise of its Defeasance option, payment of the Notes may not be accelerated because of an Event of Default.

(c)              Subject to compliance with this Article 8, the Issuer may exercise its option under this Section 8.02 notwithstanding the prior exercise of its option under Section 8.03.

Section 8.03                  Covenant Defeasance .

Upon the Issuer’s exercise under Section 8.01 of the option applicable to this Section 8.03, the Issuer and the Subsidiary Guarantors shall, subject to the satisfaction of the conditions set forth in Section 8.04, be released from their obligations under the covenants contained in Sections 3.09, 4.03, 4.05, 4.06, 4.07, 4.08, 4.09, 4.10 and 4.11 with respect to the outstanding Notes, and the Subsidiary Guarantors shall be deemed to have been discharged from their obligations with respect to all Guarantees, on and after the date the conditions set forth in Section 8.04 are satisfied (“ Covenant Defeasance ”), and the Notes shall thereafter be deemed not “outstanding” for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed “outstanding” for all other purposes hereunder (it being understood that such Notes shall not be deemed outstanding for accounting purposes).  For this purpose, Covenant Defeasance means that, with respect to this Indenture and the outstanding Notes, the Issuer may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event of Default under Section 6.01, but, except as specified above, the remainder of this Indenture and the Notes shall be unaffected thereby.  In addition, upon the Issuer’s exercise under Section 8.01 of the option applicable to this Section 8.03, subject to the satisfaction of the conditions set forth in Section 8.04, an Event of Default specified in Section 6.01(3) (only with respect to covenants that are released as a result of such Covenant Defeasance) and 6.01(4), (5) (solely with respect to any Significant Subsidiary) and (6) (solely with respect to any Significant Subsidiary) will no longer constitute an Event of Default.

Section 8.04                  Conditions to Legal or Covenant Defeasance .

(a)              The following shall be the conditions to the exercise of either the Defeasance option under Section 8.02 or the Covenant Defeasance option under Section 8.03 with respect to the Notes:
 
(1)              the Issuer must irrevocably have deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to the benefit of the Holders of such Notes: (A) money in an amount, (B) Government Securities, which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than the due date of any payment, money in an amount or (C) a combination thereof, in each case sufficient without reinvestment, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which shall be applied by the Trustee to pay and discharge, the entire indebtedness in respect of the principal of and premium, if any, and interest on such Notes on the Stated Maturity thereof or (if the Issuer has made irrevocable arrangements satisfactory to the Trustee for the giving of notice of redemption in the name and at the expense of the Issuer) the redemption date thereof, as the case may be, in accordance with the terms of this Indenture and such Notes;
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(2)              in the case of Defeasance, the Issuer has delivered to the Trustee an Opinion of Counsel stating that

(A)            the Issuer has received from, or there has been published by, the U.S. Internal Revenue Service a ruling or

(B)             since the Issue Date, there has been a change in the applicable U.S. federal income tax law,

in either case (A) or (B) to the effect that, and based thereon such Opinion of Counsel will confirm that, the Holders will not recognize gain or loss for U.S. federal income tax purposes as a result of the deposit, Defeasance and discharge to be effected with respect to the Notes and will be subject to U.S. federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit, Defeasance and discharge were not to occur;
 
(3)              in the case of Covenant Defeasance, the Issuer has delivered to the Trustee an Opinion of Counsel to the effect that the Holders of the outstanding Notes will not recognize gain or loss for U.S. federal income tax purposes as a result of the deposit and Covenant Defeasance to be effected with respect to such Notes and will be subject to U.S. federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Covenant Defeasance were not to occur;

(4)              no Default with respect to the outstanding Notes has occurred and is continuing at the time of such deposit after giving effect thereto (other than a Default resulting from the borrowing of funds to be applied to such deposit and the grant of any Lien to secure such borrowing);

(5)              such Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or material instrument (other than this Indenture) to which the Issuer or any Subsidiary Guarantor is a party or by which the Issuer or any Subsidiary Guarantor is bound; and

 (6)              the Issuer shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent with respect to such Defeasance or Covenant Defeasance have been complied with.

Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) or (3) above with respect to a Defeasance or Covenant Defeasance need not to be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Issuer.

Section 8.05                  Deposited Money and Government Securities to Be Held in Trust; Other Miscellaneous Provisions .

(a)              Subject to Section 8.06, all money and Government Securities (including the proceeds thereof) deposited with the Trustee pursuant to Section 8.04 in respect of the outstanding Notes shall be held in trust and applied by the Trustee, in accordance with the provisions of such Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Issuer or a Subsidiary acting as Paying Agent) as the Trustee may determine, to the Holders of all sums due and to become due thereon in respect of principal, premium, if any, and interest on the Notes, but such money need not be segregated from other funds except to the extent required by law.
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(b)              The Issuer will pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash or Government Securities deposited pursuant to Section 8.04 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders.

(c)              Anything in this Article 8 to the contrary notwithstanding, the Trustee will deliver or pay to the Issuer from time to time upon the request of the Issuer any money or Government Securities held by it as provided in Section 8.04 which, in the opinion of an Independent Financial Advisor expressed in a written certification thereof delivered to the Trustee (which may be the opinion delivered under Section 8.04(a)), are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Defeasance or Covenant Defeasance.

Section 8.06                  Repayment to the Issuer .

Subject to any applicable abandoned property law, any money deposited with the Trustee or any Paying Agent, or then held by the Issuer, in trust for the payment of the principal, premium, if any, or interest on any Note and remaining unclaimed for two years after such principal, premium, if any, or interest has become due and payable shall be paid to the Issuer on its request or (if then held by the Issuer) shall be discharged from such trust; and the Holder of such Note shall thereafter look only to the Issuer for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Issuer as trustee thereof, shall thereupon cease.

Section 8.07                  Reinstatement .

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

ARTICLE 9

AMENDMENT, SUPPLEMENT AND WAIVER

Section 9.01                  Without Consent of Holders .

(a)              Notwithstanding Section 9.02, without the consent of any Holder, the Issuer and the Trustee may, at any time and from time to time, amend or supplement this Indenture:

(1)              to evidence the succession of another Person to the Issuer or a Subsidiary Guarantor and the assumption by any such successor of the covenants of the Issuer or such Subsidiary Guarantor, as applicable, under this Indenture, the Notes and the Guarantees thereof;
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(2)              to add to the covenants of the Issuer and the Subsidiary Guarantors for the benefit of the applicable Holders, or to surrender any right or power herein conferred upon the Issuer and the Subsidiary Guarantors;

(3)              to add additional Events of Default;

(4)              to provide for uncertificated Notes in addition to or in place of the certificated Notes;
 
(5)              to evidence and provide for the acceptance of appointment under this Indenture by a successor Trustee; provided that the successor Trustee is otherwise qualified and eligible to act as such under the terms of this Indenture;

(6)              to provide for or confirm the issuance of Additional Notes in accordance with the terms of this Indenture;
 
(7)              to add a Subsidiary Guarantor in accordance with this Indenture or release a Subsidiary Guarantor from its Guarantee when permitted by the terms of this Indenture;

(8)              to cure any ambiguity, defect, omission, mistake or inconsistency;

(9)              to make any other provisions with respect to matters or questions arising under this Indenture; provided , however , that such actions pursuant to this clause (9) shall not adversely affect the interests of the Holders in any material respect, as determined in good faith by the Board of Directors of the Issuer;

(10)              to provide for the issuance of Exchange Notes, which shall be treated, together with any outstanding Notes, as a single class of securities;

(11)              to conform the text of this Indenture or the Notes to any provision of the “Description of notes” section of the Offering Memorandum to the extent the Trustee has received an Officers’ Certificate stating that such text constitutes an unintended conflict with the description of the corresponding provision in the “Description of notes” section of the Offering Memorandum;

(12)              to effect or maintain the qualification of this Indenture under the Trust Indenture Act; or

(13)              as provided in the First Supplemental Indenture to this Indenture attached as Exhibit D hereto.

Upon the request of the Issuer, and upon receipt by the Trustee of the documents described in Section 12.04, the Trustee shall join with the Issuer and the Subsidiary Guarantors in the execution of any amended or supplemental indenture authorized or permitted by the terms of this Indenture and to make any further appropriate agreements and stipulations that may be therein contained, but the Trustee shall not be obligated to enter into such amended or supplemental indenture that affects its own rights, duties or immunities under this Indenture or otherwise.

Section 9.02                  With Consent of Holders .

(a)              Except as provided in Section 9.01 and this Section 9.02, with the consent of the Holders of not less than a majority in aggregate principal amount of the then outstanding Notes, the Issuer and the Trustee may amend or supplement this Indenture for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture, or of the Notes or the related Guarantees, or of modifying in any manner the rights of the Holders under this Indenture, including the definitions herein.  Section 2.08 and Section 2.09 shall determine which Notes are considered to be “outstanding” for the purposes of this Section 9.02.
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(b)              Without the consent of each affected Holder, an amendment, supplement or waiver under this Section 9.02 may not (with respect to any Notes held by a non-consenting Holder):

(1)              change the Stated Maturity of any Note or of any installment of interest on any Note, or reduce the amount payable in respect of the principal thereof or the rate of interest thereon or any premium payable thereon, or reduce the amount that would be due and payable on acceleration of the maturity thereof, or change the place of payment where, or the coin or currency in which, any Note or any premium or interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof, or change the date on which any Notes may be subject to redemption or reduce the redemption price therefor;

(2)              reduce the percentage in aggregate principal amount of the then outstanding Notes, the consent of whose Holders is required for any such amendment or supplement, or the consent of whose Holders is required for any waiver of compliance with covenants relating to the payment of principal of or premium, if any, or interest on the Notes or related defaults or Events of Default and their consequences (except with respect to a rescission or acceleration of the Notes by the Holders of a majority in aggregate principal amount of the Notes then outstanding, and a waiver of the Event of Default under Section 6.01(1) or 6.01(2) that resulted from such acceleration) provided for in this Indenture;

(3)              modify the obligations of the Issuer to make offers to purchase upon a Change of Control if such modification was done after the occurrence of the related Change of Control;

(4)              modify or change any provision of this Indenture affecting the ranking of the Notes in a manner adverse to the applicable Holders; or

(5)              modify any of the provisions of this Section 9.02(b) or provisions relating to waiver of compliance with covenants relating to the payment of principal of or premium, if any, or interest on the Notes or related defaults or Events of Default and their consequences (except with respect to a rescission or acceleration of the Notes by the Holders of a majority in aggregate principal amount of the Notes then outstanding, and a waiver of the Event of Default under Section 6.01(1) or 6.01(2) that resulted from such acceleration), except to increase any such percentage required for such actions or to provide that such other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each outstanding Note issued thereunder that is affected thereby;

(c)              Upon the request of the Issuer, and upon the filing with the Trustee of evidence reasonably satisfactory to the Trustee of the consent of the Holders as aforesaid, and upon receipt by the Trustee of the documents described in Section 7.02 and Section 12.04, the Trustee shall join with the Issuer and the Subsidiary Guarantors in the execution of such amended or supplemental indenture unless such amended or supplemental indenture directly affects the Trustee’s own rights, duties or immunities under this Indenture, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such amended or supplemental indenture.

(d)              It shall not be necessary for the consent of the Holders under this Section 9.02 to approve the particular form of any proposed amendment, supplement or waiver.  It shall be sufficient if such consent approves the substance of such proposed amendment or supplement.  A consent to any amendment, supplement or waiver under this Indenture by any Holder given in connection with a tender of such Holder’s Notes will not be rendered invalid by such tender.
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(e)              A consent to any amendment, supplement or waiver of this Indenture or the Notes or the Guarantee by any Holder given in connection with a tender of such Holder’s Notes will not be rendered invalid by such tender.

Section 9.03                  Compliance with Trust Indenture Act

If this Indenture is qualified under the Trust Indenture Act, every amendment or supplement to this Indenture or the Notes shall be set forth in an amended or supplemental indenture that complies with the Trust Indenture Act as then in effect.

Section 9.04                  Revocation and Effect of Consents .

(a)              Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a Note is a continuing consent by the Holder of a Note and every subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting Holder’s Note, even if notation of the consent is not made on any Note.  However, any such Holder of a Note or subsequent Holder of a Note may revoke the consent as to its Note if the Trustee receives written notice of revocation before the date the waiver, supplement or amendment becomes effective.  An amendment, supplement or waiver becomes effective in accordance with its terms and thereafter binds every Holder.

(b)              The Issuer may, but shall not be obligated to, fix a record date pursuant to Section 1.05 for the purpose of determining the Holders entitled to consent to any amendment, supplement or waiver.

Section 9.05                  Notation on or Exchange of Notes .

(a)              The Trustee may place an appropriate notation about an amendment, supplement or waiver on any Note thereafter authenticated.  The Issuer in exchange for all Notes may issue and the Trustee shall, upon receipt of an Authentication Order and any other deliverables required hereunder, authenticate new Notes that reflect the amendment, supplement or waiver.

(b)              Failure to make the appropriate notation or issue a new Note shall not affect the validity and effect of such amendment, supplement or waiver.

Section 9.06       Trustee to Sign Amendments, etc .

The Trustee shall sign any amendment, supplement or waiver authorized pursuant to this Article 9 if the amendment, supplement or waiver does not adversely affect the rights, duties, liabilities or immunities of the Trustee.  In executing any amendment, supplement or waiver, the Trustee shall be entitled to receive and (subject to Section 7.01) shall be fully protected in relying upon, in addition to the documents required by Section 12.04, an Officers’ Certificate and an Opinion of Counsel stating that the execution of such amendment, supplement or waiver is authorized or permitted by this Indenture and that such amendment, supplement or waiver is the legal, valid and binding obligation of the Issuer and any Subsidiary Guarantor party thereto, enforceable against them in accordance with its terms, subject to customary exceptions, and complies with the provisions hereof (including Section 9.03).
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ARTICLE 10

SATISFACTION AND DISCHARGE

Section 10.01               Satisfaction and Discharge .

(a)              This Indenture will be discharged, and will cease to be of further effect as to all Notes, when either:

(1)              all Notes theretofore authenticated and delivered have been delivered to the Trustee for cancellation; or

(2)              (A) all such Notes not theretofore delivered to the Trustee for cancellation have become due and payable or will become due and payable within one year or are to be called for redemption within one year (a “ Discharge ”) under irrevocable arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Issuer, and the Issuer has irrevocably deposited or caused to be deposited with the Trustee funds in an amount sufficient to pay and discharge the entire indebtedness on the Notes, not theretofore delivered to the Trustee for cancellation, for principal of, premium, if any, and accrued interest to the Stated Maturity or date fixed for redemption;

(B)              the Issuer  or the applicable Subsidiary Guarantor has paid or caused to be paid all other sums then due and payable under this Indenture by the Issuer with respect to the Notes;

(C)              the deposit will not result in a breach or violation of, or constitute a default under, any instrument (other than this Indenture) to which the Issuer or any Subsidiary Guarantor is a party or by which the Issuer or the applicable Subsidiary Guarantor is bound;

(D)              the Issuer has delivered irrevocable instructions to the Trustee under this Indenture to apply the deposited money toward the payment of the Notes at maturity or on the redemption date, as the case may be; and

(E)              the Issuer has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel each stating that all conditions precedent under this Indenture relating to the Discharge have been complied with.

(b)              Notwithstanding the satisfaction and discharge of this Indenture, if money shall have been deposited with the Trustee pursuant to subclause (A) of clause (2) of Section 10.01(a), the provisions of Section 10.02 and Section 8.06 shall survive.

Section 10.02               Application of Trust Money .

(a)              Subject to the provisions of Section 8.06, all money deposited with the Trustee pursuant to Section 10.01 shall be held in trust and applied by it, in accordance with the provisions of the Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Issuer acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal, premium, if any, and interest for whose payment such money has been deposited with the Trustee, but such money need not be segregated from other funds except to the extent required by law.

(b)              If the Trustee or Paying Agent is unable to apply any money or Government Securities in accordance with Section 10.01 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 Issuer’s and any Subsidiary Guarantor’s obligations under this Indenture, the Notes and the Guarantees shall be revived and reinstated as though no deposit had occurred pursuant to Section 10.01; provided that if the Issuer has made any payment of principal, premium, if any, or interest on any Notes because of the reinstatement of its obligations, the Issuer shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money or Government Securities held by the Trustee or Paying Agent, as the case may be.
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ARTICLE 11

GUARANTEES

Section 11.01               Guarantee .

(a)              Subject to this Article 11, each of the Subsidiary Guarantors hereby, jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior unsecured basis, to each Holder and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Issuer hereunder or thereunder, that: (1) the principal, premium, if any, and interest on the Notes shall be promptly paid in full when due, whether at Stated Maturity, by acceleration, redemption or otherwise, and interest on the overdue principal and interest on the Notes, if any, if lawful, and all other obligations of the Issuer to the Holders or the Trustee hereunder or under the Notes shall be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (2) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise (the obligations so guaranteed, collectively, the “ Guaranteed Obligations ”).  Failing payment by the Issuer when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately.  Each Subsidiary Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.

(b)              The Subsidiary Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, the recovery of any judgment against the Issuer, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor.  Each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuer, any right to require a proceeding first against the Issuer, protest, notice and all demands whatsoever and covenants that this Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture, or pursuant to Section 11.06.

(c)              Each of the Subsidiary Guarantors also agrees, jointly and severally, to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) Incurred by the Trustee or any Holder in enforcing any rights under this Section 11.01.

(d)              If any Holder or the Trustee is required by any court or otherwise to return to the Issuer, the Subsidiary Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to the Issuer or the Subsidiary Guarantors, any amount paid either to the Trustee or such Holder, this Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect.

(e)              Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Guaranteed Obligations until payment in full of all Guaranteed Obligations.  Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (1) the maturity of the Guaranteed Obligations may be accelerated as provided in Article 6 for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations, and (2) 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 the Subsidiary Guarantors for the purpose of this Guarantee.  The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantees.
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(f)              Each Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Issuer for liquidation or reorganization, should the Issuer become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Issuer’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes or the Guarantees, whether as a “voidable preference,” “fraudulent transfer” or otherwise, all as though such payment or performance had not been made.  In the event that any payment or any part thereof, is rescinded, reduced, restored or returned, the Notes shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.

(g)              In case any provision of any Guarantee shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

(h)              Each payment to be made by a Subsidiary Guarantor in respect of its Guarantee shall be made without set-off, counterclaim, reduction or diminution of any kind or nature.

Section 11.02               Limitation on Subsidiary Guarantor Liability .

Each Subsidiary Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Guarantee of such Subsidiary Guarantor not constitute a fraudulent conveyance or a fraudulent transfer for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to any Guarantee.  To effectuate the foregoing intention, the Trustee, the Holders and the Subsidiary Guarantors hereby irrevocably agree that the obligations of each Subsidiary Guarantor shall be limited to the maximum amount as will, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Subsidiary Guarantor that are relevant under such laws and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Subsidiary Guarantor in respect of the obligations of such other Subsidiary Guarantor under this Article 11, result in the obligations of such Subsidiary Guarantor under its Guarantee not constituting a fraudulent conveyance or fraudulent transfer under applicable law.  Each Subsidiary Guarantor that makes a payment under its Guarantee will be entitled upon payment in full of all Guaranteed Obligations under this Indenture to a contribution from each other Subsidiary Guarantor in an amount equal to such other Subsidiary Guarantor’s pro rata portion of such payment based on the respective net assets of all the Subsidiary Guarantors at the time of such payment, determined in accordance with GAAP.
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Section 11.03               Execution and Delivery .

(a)              To evidence its Guarantee set forth in Section 11.01, each Subsidiary Guarantor hereby agrees that this Indenture or a supplemental indenture to this Indenture shall be executed on behalf of such Subsidiary Guarantor by an Officer or person holding an equivalent title.

(b)              Each Subsidiary Guarantor hereby agrees that its Guarantee set forth in Section 11.01 shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Guarantee on the Notes.

(c)              If an Officer whose signature is on this Indenture or a supplemental indenture to this Indenture no longer holds that office at the time the Trustee authenticates the Note, the Guarantees shall be valid nevertheless.

(d)              The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Guarantee set forth in this Indenture on behalf of the Subsidiary Guarantors.

Section 11.04               Subrogation .

Each Subsidiary Guarantor shall be subrogated to all rights of Holders against the Issuer in respect of any amounts paid by any Subsidiary Guarantor pursuant to the provisions of Section 11.01; provided that, if an Event of Default has occurred and is continuing, no Subsidiary Guarantor shall be entitled to enforce or receive any payments arising out of, or based upon, such right of subrogation until all amounts then due and payable by the Issuer under this Indenture or the Notes shall have been paid in full.

Section 11.05               Benefits Acknowledged .

Each Subsidiary Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by this Indenture and that the guarantee and waivers made by it pursuant to its Guarantee are knowingly made in contemplation of such benefits.

Section 11.06               Release of Guarantees .

(a)              A Guarantee by a Subsidiary Guarantor shall be automatically and unconditionally released and discharged, and no further action by such Guarantor, the Issuer or the Trustee shall be required for the release of such Subsidiary Guarantor’s Guarantee, upon:

(1)(i)        upon the sale or other disposition (including by way of a consolidation or merger) of such Subsidiary Guarantor;

(ii)              upon the sale or disposition of all or substantially all assets of such Subsidiary Guarantor;

(iii)            at such time as such Subsidiary Guarantor no longer guarantees any (i) Credit Agreement or (ii) Material Capital Markets Debt of the Issuer or any Subsidiary Guarantor;

(iv)           upon defeasance of the Notes, as provided under Article 8;
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(v) at such time as such Subsidiary Guarantor is no longer a Restricted Subsidiary; or

(vi) as described under Article 9

in the case of Section 11.06(a)(1)(i) and (ii), other than to the Issuer or a Restricted Subsidiary of the Issuer; and

(2)              such Subsidiary Guarantor delivering to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for in this Indenture relating to such release have been complied with.

(b)              At the written request of the Issuer, the Trustee shall execute and deliver any documents reasonably required in order to evidence such release, discharge and termination in respect of the applicable Guarantee.

ARTICLE 12

MISCELLANEOUS

Section 12.01               Trust Indenture Act Controls .

If any provision of this Indenture limits, qualifies or conflicts with the duties imposed by Trust Indenture Act Section 318(c) in respect of Sections of the Trust Indenture Act that are incorporated by reference in this Indenture pursuant to Section 1.04, the imposed duties shall control.

Section 12.02               Notices .

(a)              Any notice or communication to the Issuer, any Subsidiary Guarantor or the Trustee is duly given if in writing and (1) delivered in person, (2) mailed by first-class mail (certified or registered, return receipt requested), postage prepaid, or overnight air courier guaranteeing next day delivery or (3) sent by facsimile or electronic transmission, to its address:
 
if to the Issuer or any Subsidiary Guarantor:

Blue Cube Spinco Inc.
c/o Olin Corporation
190 Carondelet Plaza, Suite 1530
Clayton, Missouri 63105
Fax No.: (314) 480 - 1487
Email: sccurley@olin.com
Attention: Stephen C. Curley
 
if to the Trustee:
 
U.S. Bank National Association
60 Livingston Avenue
EP-MN-WS3C
St. Paul, Minnesota 55107
Fax No.: (651) 466 - 7430
Email: donald.hurrelbrink@usbank.com
Attention: Donald T. Hurrelbrink
 

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The Issuer, any Subsidiary Guarantor or the Trustee, by like notice, may designate additional or different addresses for subsequent notices or communications.

(b)              All notices and communications (other than those sent to Holders) shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; five calendar days after being deposited in the mail, postage prepaid, if mailed by first-class mail; the next Business Day after timely delivery to the courier, if mailed by overnight air courier guaranteeing next day delivery; when receipt acknowledged, if sent by facsimile or electronic transmission; provided that any notice or communication delivered to the Trustee shall be deemed effective upon actual receipt thereof.

(c)              Any notice or communication to a Holder shall be mailed by first-class mail (certified or registered, return receipt requested) or by overnight air courier guaranteeing next day delivery to its address shown on the Note Register or by such other delivery system as the Trustee agrees to accept or otherwise in accordance with the procedures of the Depositary.  Any notice or communication shall also be so delivered to any Person described in Trust Indenture Act Section 313(c), to the extent required by the Trust Indenture Act.  Failure to mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders.

(d)              Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice.  Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.

(e)              Notwithstanding any other provision herein, where this Indenture provides for notice of any event to any Holder of an interest in a Global Note (whether by mail or otherwise), such notice shall be sufficiently given if given to the Depositary for such Note (or its designee), according to the applicable procedures of such Depositary, if any, prescribed for the giving of such notice.

(f)              The Trustee agrees to accept and act upon notice, instructions or directions pursuant to this Indenture sent by unsecured facsimile or electronic transmission; provided , however , that (1) the party providing such written notice, instructions or directions, subsequent to such transmission of written instructions, shall provide the originally executed instructions or directions to the Trustee in a timely manner, and (2) such originally executed notice, instructions or directions shall be signed by an authorized representative of the party providing such notice, instructions or directions.  The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reasonable reliance upon and compliance with such notice, instructions or directions notwithstanding such notice, instructions or directions conflict or are inconsistent with a subsequent notice, instructions or directions.

(g)              If a notice or communication is sent in the manner provided above within the time prescribed, it is duly given, whether or not the addressee receives it.

(h)              If the Issuer mails a notice or communication to Holders, it shall mail a copy to the Trustee and each Agent at the same time.

Section 12.03               Communication by Holders with Other Holders .

Holders may communicate pursuant to Trust Indenture Act Section 312(b) with other Holders with respect to their rights under this Indenture or the Notes.  The Issuer, the Subsidiary Guarantors, the Trustee, the Registrar and anyone else shall have the protection of Trust Indenture Act Section 312(c).
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Section 12.04               Certificate and Opinion as to Conditions Precedent .

Upon any request or application by the Issuer or any Subsidiary Guarantor to the Trustee to take any action under this Indenture, the Issuer or such Subsidiary Guarantor, as the case may be, shall furnish to the Trustee:

(1)              an Officers’ Certificate in form and substance reasonably satisfactory to the Trustee (which shall include the statements set forth in Section 12.05) stating that, in the opinion of the signer(s), all conditions precedent and covenants, 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 (which shall include the statements set forth in Section 12.05) stating that, in the opinion of such counsel, all such conditions precedent and covenants have been complied with.

Section 12.05               Statements Required in Certificate or Opinion .

Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than a certificate provided pursuant to Section 4.04 or Trust Indenture Act Section 314(a)(4)) shall include:

(1)              a statement that the Person 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 Person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with (and, in the case of an Opinion of Counsel, may be limited to reliance on an Officers’ Certificate as to matters of fact); and

(4)              a statement as to whether or not, in the opinion of such Person, such condition or covenant has been complied with.

Section 12.06               Rules by Trustee and Agents .

The Trustee may make reasonable rules for action by or at a meeting of Holders.  The Registrar or Paying Agent may make reasonable rules and set reasonable requirements for its functions.

Section 12.07               No Personal Liability of Directors, Officers, Employees, Members, Partners and Stockholders .

No past, present or future director, officer, employee, incorporator, member, partner or stockholder of the Issuer or any Subsidiary Guarantor, as such, shall have any liability for any obligations of the Issuer or any Subsidiary Guarantor (other than the Issuer in respect of the Notes and each Subsidiary Guarantor in respect of its Guarantee) under the Notes, the Guarantees or this Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation.
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Each Holder by accepting a Note waives and releases all such liability.  The waiver and release are part of the consideration for issuance of the Notes.

Section 12.08               Governing Law .

THIS INDENTURE, THE NOTES AND ANY GUARANTEE WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

Section 12.09               Waiver of Jury Trial .

EACH OF THE ISSUER, THE SUBSIDIARY GUARANTORS AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES, THE GUARANTEES OR THE TRANSACTIONS CONTEMPLATED HEREBY.

Section 12.10               Force Majeure .

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

Section 12.11               No Adverse Interpretation of Other Agreements .

This Indenture may not be used to interpret any other indenture, loan or debt agreement of the Issuer or its Restricted Subsidiaries or of any other Person.  Any such indenture, loan or debt agreement may not be used to interpret this Indenture.

Section 12.12               Successors .

All agreements of the Issuer in this Indenture and the Notes shall bind its successors.  All agreements of the Trustee in this Indenture shall bind its successors.  All agreements of each Subsidiary Guarantor in this Indenture shall bind its successors, except as otherwise provided in Section 11.06

Section 12.13               Severability .

In case any provision in this Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

Section 12.14               Counterpart Originals .

The parties may sign any number of copies of this Indenture.  Each signed copy shall be an original, but all of them together represent the same agreement.
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Section 12.15       Table of Contents, Headings, etc .

The Table of Contents, Cross-Reference Table and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part of this Indenture and shall in no way modify or restrict any of the terms or provisions hereof.

Section 12.16               Facsimile and PDF Delivery of Signature Pages .

The exchange of copies of this Indenture and of signature pages by facsimile or portable document format (“ PDF ”) transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes.  Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.

Section 12.17               U.S.A. PATRIOT Act .

The parties hereto acknowledge that in accordance with Section 326 of the U.S.A. PATRIOT Act, the Trustee is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee.  The parties to this Indenture agree that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements of the U.S.A. PATRIOT Act.

Section 12.18               Payments Due on Non-Business Days .

In any case where any Interest Payment Date, redemption date or repurchase date or the Stated Maturity of the Notes shall not be a Business Day, then (notwithstanding any other provision of this Indenture or of the Notes) payment of principal, premium, if any, or interest on the Notes need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the Interest Payment Date, redemption date or repurchase date, or at the Stated Maturity of the Notes, provided that no interest will accrue for the period from and after such Interest Payment Date, redemption date, repurchase date or Stated Maturity, as the case may be.

Section 12.19               Qualification of Indenture .

The Issuer and the Subsidiary Guarantors shall qualify this Indenture under the Trust Indenture Act in accordance with the terms and conditions of the Registration Rights Agreement and shall pay all reasonable costs and expenses (including attorneys’ fees and expenses for the Issuer, the Subsidiary Guarantors and the Trustee) incurred in connection therewith, including, but not limited to, costs and expenses of qualification of this Indenture and the Notes and printing this Indenture and the Notes.  The Trustee shall be entitled to receive from the Issuer and the Subsidiary Guarantors any such Officers’ Certificates, Opinions of Counsel or other documentation as it may reasonably request in connection with any such qualification of this Indenture under the Trust Indenture Act.

 [ Signatures on following page ]
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BLUE CUBE SPINCO INC.
 
       
 
By:
/s/ James A. Varilek  
    Name: James A. Varilek   
    Title: Treasurer   
       

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
[ Signature page to Indenture for Senior Notes due 2023 ]


 
 
 
U.S. BANK NATIONAL ASSOCIATION, as Trustee
 
       
 
By:
/s/ Donald T. Hurrelbrink  
    Name: Donald T. Hurrelbrink  
    Title: Vice President  
       

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
[ Signature page to Indenture for Senior Notes due 2023 ]
 
 
APPENDIX A
 
PROVISIONS RELATING TO INITIAL NOTES,
ADDITIONAL NOTES AND EXCHANGE NOTES


Section 1.1                     Definitions .

(a)   Capitalized Terms .

Capitalized terms used but not defined in this Appendix A have the meanings given to them in this Indenture.  The following capitalized terms have the following meanings:

“ Applicable Procedures ” means, with respect to any transfer or transaction involving a Global Note or beneficial interest therein, the rules and procedures of the Depositary for such Global Note, Euroclear or Clearstream, in each case to the extent applicable to such transaction and as in effect from time to time.

“ Clearstream ” means Clearstream Banking, Société Anonyme, or any successor securities clearing agency.

“ Distribution Compliance Period ,” with respect to any Note, means the period of 40 consecutive days beginning on and including the later of (a) the day on which such Note is first offered to persons other than distributors (as defined in Regulation S) in reliance on Regulation S, notice of which day shall be promptly given by the Issuer to the Trustee, and (b) the date of issuance with respect to such Note or any predecessor of such Note.

“ Euroclear ” means Euroclear Bank S.A./N.Y., as operator of Euroclear systems Clearance System or any successor securities clearing agency.

“ IAI ” means an institution that is an “accredited investor” as described in Rule 501(a)(1), (2), (3) or (7) under the Securities Act and is not a QIB.

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

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

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

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

“ Unrestricted Global Note ” means any Note in global form that does not bear or is not required to bear the Restricted Notes Legend.

“ U.S. person ” means a “U.S. person” as defined in Regulation S.

(b) Other Definitions .


 
Term :
Defined in Section :
     
 
“ Agent Members ”                                                                                                                               
2.1(c)
 
“ Definitive Notes Legend ”                                                                                                                     
2.2(e)
     
 
 

 
Term :
Defined in Section :
     
 
“ ERISA Legend ”                                                                                                                               
2.2(e)
 
“ Global Note ”                                                                                                                               
2.1(b)
 
“ Global Notes Legend ”                                                                                                                               
2.2(e)
 
“ IAI Global Note ”                                                                                                                               
2.1(b)
 
“ Regulation S Global Note ”                                                                                                                               
2.1(b)
 
“ Regulation S Notes ”                                                                                                                               
2.1(a)
 
“ Restricted Notes Legend ”                                                                                                                               
2.2(e)
 
“ Rule 144A Global Note ”                                                                                                                               
2.1(b)
 
“ Rule 144A Notes ”                                                                                                                               
2.1(a)
 


 
 
 
 
 
 
 
 
 
 
 
Section 2.1                     Form and Dating

(a)  The Initial Notes issued on the date hereof shall be (i) offered and sold by the Issuer to the initial purchaser thereof and further transferred on the date hereof in one or more transactions to the selling securityholders identified in the Offering Memorandum and (ii) thereafter resold, initially only to (1) QIBs in reliance on Rule 144A (“ Rule 144A Notes ”) and (2) Persons other than U.S. persons in reliance on Regulation S (“ Regulation S Notes ”).  Additional Notes may also be considered to be Rule 144A Notes or Regulation S Notes, as applicable.

(b)   Global Notes .  Rule 144A Notes shall be issued initially in the form of one or more permanent global Notes in definitive, fully registered form, numbered RA-1 upward (collectively, the “ Rule 144A Global Note ”) and Regulation S Notes shall be issued initially in the form of one or more global Notes, numbered RS-1 upward (collectively, the “ Regulation S Global Note ”), in each case without interest coupons and bearing the Global Notes Legend and Restricted Notes Legend, which shall be deposited on behalf of the purchasers of the Notes represented thereby with the Custodian, and registered in the name of the Depositary or a nominee of the Depositary, duly executed by the Issuer and authenticated by the Trustee as provided in the Indenture.  One or more global Notes in definitive, fully registered form without interest coupons and bearing the Global Notes Legend and the Restricted Notes Legend, numbered RIAI-1 upward (collectively, the “ IAI Global Note ”) shall also be issued on the Issue Date, deposited with the Custodian, and registered in the name of the Depositary or a nominee of the Depositary, duly executed by the Issuer and authenticated by the Trustee as provided in this Indenture to accommodate transfers of beneficial interests in the Notes to IAIs subsequent to the initial distribution.  The Rule 144A Global Note, the IAI Global Note, the Regulation S Global Note and any Unrestricted Global Note are each referred to herein as a “ Global Note ” and are collectively referred to herein as “ Global Notes .”  Each Global Note shall represent such of the outstanding Notes as shall be specified in the “Schedule of Exchanges of Interests in the Global Note” attached thereto and each shall provide that it shall represent the aggregate principal amount of Notes from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes represented thereby may from time to time be reduced or increased, as applicable, to reflect exchanges and redemptions.  Any endorsement of a Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of outstanding Notes represented thereby shall be made by the Trustee or the Custodian, at the direction of the Trustee, in accordance with instructions given by the Holder thereof as required by Section 2.06 of this Indenture and Section 2.2(c) of this Appendix A.

(c)  Book-Entry Provisions .  This Section 2.1(c) shall apply only to a Global Note deposited with or on behalf of the Depositary.
 
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The Issuer shall execute and the Trustee shall, in accordance with this Section 2.1(c) and Section 2.02 of this Indenture and pursuant to an order of the Issuer signed by one Officer of the Issuer, authenticate and deliver initially one or more Global Notes that (i) shall be registered in the name of the Depositary for such Global Note or Global Notes 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 Custodian.

Members of, or participants in, the Depositary (“ Agent Members ”) shall have no rights under the Indenture with respect to any Global Note held on their behalf by the Depositary or by the Trustee as Custodian or under such Global Note, and the Depositary may be treated by the Issuer, the Trustee and any agent of the Issuer or the Trustee as the absolute owner of such Global Note for all purposes whatsoever.  Notwithstanding the foregoing, nothing herein shall prevent the Issuer, the Trustee or any agent of the Issuer or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and its 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 Note.

(d)  Definitive Notes .  Except as provided in Section 2.2 or Section 2.3 of this Appendix A, owners of beneficial interests in Global Notes shall not be entitled to receive physical delivery of Definitive Notes.

Section 2.2                     Transfer and Exchange .

(a)   Transfer and Exchange of Definitive Notes for Definitive Notes .  When Definitive Notes are presented to the Registrar with a request:

(i)  to register the transfer of such Definitive Notes; or

(ii)  to exchange such Definitive Notes for an equal principal amount of Definitive Notes 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 Notes surrendered for transfer or exchange:

(1)  shall be duly endorsed or accompanied by a written instrument of transfer in form reasonably satisfactory to the Issuer and the Registrar, duly executed by the Holder thereof or his attorney duly authorized in writing; and

(2)  in the case of Transfer Restricted Notes, must be transferred or exchanged pursuant to an effective registration statement under the Securities Act or pursuant to Section 2.2(b) of this Appendix A or otherwise in accordance with the Restricted Notes Legend, and are accompanied by a certification from the transferor in the form provided on the reverse side of the Form of Note in Exhibit A for exchange or registration of transfers and, as applicable, delivery of such legal opinions, certifications and other information as may be requested pursuant thereto.

(b)   Restrictions on Transfer of a Definitive Note for a Beneficial Interest in a Global Note .  A Definitive Note may not be exchanged for a beneficial interest in a Global Note except upon satisfaction of the requirements set forth below.  Upon receipt by the Trustee of a Definitive Note, duly endorsed or accompanied by a written instrument of transfer in form reasonably satisfactory to the Issuer and the Registrar, together with:
 
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(i) a certification from the transferor in the form provided on the reverse side of the Form of Note in Exhibit A for exchange or registration of transfers and, as applicable, delivery of such legal opinions, certifications and other information as may be requested pursuant thereto; and

(ii) written instructions directing the Trustee to make, or to direct the Custodian to make, an adjustment on its books and records with respect to such Global Note to reflect an increase in the aggregate principal amount of the Notes represented by the Global Note, such instructions to contain information regarding the Depositary account to be credited with such increase,

the Trustee shall cancel such Definitive Note and cause, or direct the Custodian to cause, in accordance with the standing instructions and procedures existing between the Depositary and the Custodian, the aggregate principal amount of Notes represented by the Global Note to be increased by the aggregate principal amount of the Definitive Note 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 Note equal to the principal amount of the Definitive Note so canceled.  If the applicable Global Note is not then outstanding, the Issuer shall issue and the Trustee shall authenticate, upon an Authentication Order, a new applicable Global Note in the appropriate principal amount.

(c)   Transfer and Exchange of Global Notes .

(i)  The transfer and exchange of Global Notes or beneficial interests therein shall be effected through the Depositary, in accordance with the Indenture (including applicable restrictions on transfer set forth in Section 2.2(d) of this Appendix A, if any) and the procedures of the Depositary therefor.  A transferor of a beneficial interest in a Global Note shall deliver to the Registrar 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 Note, or another Global Note and such account shall be credited in accordance with such order with a beneficial interest in the applicable Global Note and the account of the Person making the transfer shall be debited by an amount equal to the beneficial interest in the Global Note being transferred.

(ii)  If the proposed transfer is a transfer of a beneficial interest in one Global Note to a beneficial interest in another Global Note, the Registrar shall reflect on its books and records the date and an increase in the principal amount of the Global Note 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 Note from which such interest is being transferred.

(iii)  Notwithstanding any other provisions of this Appendix A (other than the provisions set forth in Section 2.3 of this Appendix A), a Global Note may not be transferred except as a whole and not in part if the transfer is 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)  Restrictions on Transfer of Global Notes; Voluntary Exchange of Interests in Transfer Restricted Global Notes for Interests in Unrestricted Global Notes .

(i) Transfers by an owner of a beneficial interest in a Rule 144A Global Note or an IAI Global Note to a transferee who takes delivery of such interest through another Transfer Restricted Global Note shall be made in accordance with the Applicable Procedures and the Restricted Notes Legend and only upon receipt by the Trustee of a certification from the transferor in the form provided on the reverse side of the Form of Note in Exhibit A for exchange or registration of transfers and, as applicable, delivery of such legal opinions, certifications and other information as may be requested pursuant thereto.  In addition, in the case of a transfer of a beneficial interest in either a Regulation S Global Note or a Rule 144A Global Note for an interest in an IAI Global Note, the transferee must furnish a signed letter substantially in the form of Exhibit B to the Trustee.
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(ii) Prior to the expiration of the Distribution Compliance Period, (A) the Regulation S Global Note shall be a temporary global security for purposes of Rules 903 and 904 under the Securities Act, whether or not designated as such on the face of such Note, and (B) interests in the Regulation S Global Note may only be held through Euroclear or Clearstream.  During the Distribution Compliance Period, beneficial ownership interests in the Regulation S Global Note may only be sold, pledged or transferred through Euroclear or Clearstream in accordance with the Applicable Procedures, the Restricted Notes Legend on such Regulation S Global Note and any applicable securities laws of any state of the U.S.  Prior to the expiration of the Distribution Compliance Period, transfers by an owner of a beneficial interest in the Regulation S Global Note to a transferee who takes delivery of such interest through a Rule 144A Global Note or an IAI Global Note shall be made only in accordance with the Applicable Procedures and the Restricted Notes Legend and upon receipt by the Trustee of a written certification from the transferor of the beneficial interest in the form provided on the reverse side of the Form of Note in Exhibit A for exchange or registration of transfers.  Such written certification shall no longer be required after the expiration of the Distribution Compliance Period.  Upon the expiration of the Distribution Compliance Period, beneficial ownership interests in the Regulation S Global Note shall be transferable in accordance with applicable law and the other terms of the Indenture.

(iii)  Upon the expiration of the Distribution Compliance Period, beneficial interests in the Regulation S Global Note may be exchanged for beneficial interests in an Unrestricted Global Note upon certification in the form provided on the reverse side of the Form of Note in Exhibit A for an exchange from a Regulation S Global Note to an Unrestricted Global Note.

(iv)  Beneficial interests in a Transfer Restricted Note that is a Rule 144A Global Note or an IAI Global Note may be exchanged for beneficial interests in an Unrestricted Global Note if the Holder certifies in writing to the Registrar that its request for such exchange is in respect of a transfer made in reliance on Rule 144 (such certification to be in the form set forth on the reverse side of the Form of Note in Exhibit A ) and/or upon delivery of such legal opinions, certifications and other information as the Issuer or the Trustee may reasonably request.

(v)  If no Unrestricted Global Note is outstanding at the time of a transfer contemplated by the preceding clauses (iii) and (iv), the Issuer shall issue and the Trustee shall authenticate, upon an Authentication Order, a new Unrestricted Global Note in the appropriate principal amount.

(e)   Legends .

(i)  Except as permitted by Section 2.2(d), this Section 2.2(e) and Section 2.2(i) of this Appendix A, each Note certificate evidencing the Global Notes and the Definitive Notes (and all Notes issued in exchange therefor or in substitution thereof) shall bear a legend in substantially the following form (each defined term in the legend being defined as such for purposes of the legend only) (“ Restricted Notes Legend ”):

 
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THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS [ IN THE CASE OF RULE 144A NOTES: ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF, THE ORIGINAL ISSUE DATE OF THE ISSUANCE OF ANY ADDITIONAL NOTES AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY)] [ IN THE CASE OF REGULATION S NOTES: 40 DAYS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF, THE ORIGINAL ISSUE DATE OF THE ISSUANCE OF ANY ADDITIONAL NOTES AND THE DATE ON WHICH THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) WAS FIRST OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN RULE 902 OF REGULATION S UNDER THE SECURITIES ACT) IN RELIANCE ON REGULATION S], ONLY (A) TO THE ISSUER OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS NOT A QUALIFIED INSTITUTIONAL BUYER AND THAT IS PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF SECURITIES OF AT LEAST $250,000 OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/ OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.  [ IN THE CASE OF REGULATION S NOTES: BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT.]
 
Each Definitive Note shall bear the following additional legend (“ Definitive Notes Legend ”):

IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH REGISTRAR AND TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.
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Each Global Note shall bear the following additional legend (“ Global Notes 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 ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS 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.

Each Note shall bear the following additional legend (“ ERISA Legend ”):

BY ITS ACQUISITION OF THIS SECURITY, THE HOLDER THEREOF WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT EITHER (1) NO PORTION OF THE ASSETS USED BY SUCH HOLDER TO ACQUIRE OR HOLD THIS SECURITY CONSTITUTES THE ASSETS OF AN EMPLOYEE BENEFIT PLAN THAT IS SUBJECT TO TITLE I OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OF A PLAN, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER ARRANGEMENT THAT IS SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”) OR PROVISIONS UNDER ANY OTHER FEDERAL, STATE, LOCAL, NON-U.S. OR OTHER LAWS OR REGULATIONS THAT ARE SIMILAR TO SUCH PROVISIONS OF ERISA OR THE CODE (“SIMILAR LAWS”), OR OF AN ENTITY WHOSE UNDERLYING ASSETS ARE CONSIDERED TO INCLUDE “PLAN ASSETS” OF ANY SUCH PLAN, ACCOUNT OR ARRANGEMENT, OR (2) THE ACQUISITION AND HOLDING OF THIS SECURITY WILL NOT CONSTITUTE A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR A SIMILAR VIOLATION UNDER ANY APPLICABLE SIMILAR LAWS.

(ii)  Upon any sale or transfer of a Transfer Restricted Note that is a Definitive Note, the Registrar shall permit the Holder thereof to exchange such Transfer Restricted Note for a Definitive Note that does not bear the Restricted Notes Legend and the Definitive Notes Legend and rescind any restriction on the transfer of such Transfer Restricted Note if the Holder certifies in writing to the Registrar that its request for such exchange is in respect of a transfer made in reliance on Rule 144 (such certification to be in the form set forth on the reverse side of the Form of Note in Exhibit A ) and provides such legal opinions, certifications and other information as the Issuer or the Trustee may reasonably request.
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(iii)  After a transfer of any Initial Notes or Additional Notes during the period of the effectiveness of a Shelf Registration Statement with respect to such Initial Notes or Additional Notes, as the case may be, all requirements pertaining to the Restricted Notes Legend on such Initial Notes or Additional Notes shall cease to apply and the requirements that any such Initial Notes or Additional Notes be issued in global form shall continue to apply.

(iv)  Upon the consummation of an Exchange Offer with respect to the Initial Notes or Additional Notes pursuant to which Holders of such Initial Notes or Additional Notes are offered Exchange Notes in exchange for their Initial Notes or Additional Notes, all requirements pertaining to Initial Notes or Additional Notes that Initial Notes or Additional Notes be issued in global form shall continue to apply, and Exchange Notes in global form without the Restricted Notes Legend shall be available to Holders that exchange such Initial Notes or Additional Notes in such Exchange Offer.

(v)  Any Additional Notes sold in a registered offering shall not be required to bear the Restricted Notes Legend.

(f)  Cancellation or Adjustment of Global Note .  At such time as all beneficial interests in a Global Note have either been exchanged for Definitive Notes, transferred in exchange for an interest in another Global Note, redeemed, repurchased or canceled, such Global Note shall be returned by the Depositary to the Trustee for cancellation or retained and canceled by the Trustee.  At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for Definitive Notes, transferred in exchange for an interest in another Global Note, redeemed, repurchased or canceled, the principal amount of Notes represented by such Global Note shall be reduced and an adjustment shall be made on the books and records of the Registrar (if it is then the Custodian for such Global Note) with respect to such Global Note, by the Registrar or the Custodian, to reflect such reduction.

(g)   Obligations with Respect to Transfers and Exchanges of Notes .

(i)  To permit registrations of transfers and exchanges, the Issuer shall execute and the Trustee shall authenticate, Definitive Notes and Global Notes at the Registrar’s request.

(ii) No service charge shall be imposed in connection with any registration of transfer or exchange, but the Issuer 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 2.10, 3.06, 3.09, 4.10, 4.11 and 9.05 of this Indenture).

(iii)  Prior to the due presentation for registration of transfer of any Note, the Issuer, the Trustee, the Paying Agent or the Registrar may deem and treat the person in whose name a Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal, premium, if any, and interest on such Note and for all other purposes whatsoever, whether or not such Note is overdue, and none of the Issuer, the Trustee, the Paying Agent or the Registrar  shall be affected by notice to the contrary.

(iv)  All Notes issued upon any transfer or exchange pursuant to the terms of this Indenture shall evidence the same debt and shall be entitled to the same benefits under this Indenture as the Notes surrendered upon such transfer or exchange.

(v)  In order to effect any transfer or exchange of an interest in any Transfer Restricted Note for an interest in a Note that does not bear the Restricted Notes Legend and has not been registered under the Securities Act, if the Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel, in form reasonably acceptable to the Registrar to the effect that no registration under the Securities Act is required in respect of such exchange or transfer or the re-sale of such interest by the beneficial holder thereof, shall be required to be delivered to the Registrar and the Trustee.
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(h)  No Obligation of the Trustee .

(i)  The Trustee shall have no responsibility or obligation to any beneficial owner of a Global Note, 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 Notes or with respect to the delivery to any participant, member, beneficial owner or other Person (other than the Depositary) of any notice (including any notice of redemption or repurchase) or the payment of any amount, under or with respect to such Notes.  All notices and communications to be given to the Holders and all payments to be made to Holders under the Notes shall be given or made only to the registered Holders (which shall be the Depositary or its nominee in the case of a Global Note).  The rights of beneficial owners in any Global Note shall be exercised only through the Depositary subject to the 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 this Indenture or under applicable law with respect to any transfer of any interest in any Note (including any transfers between or among Depositary participants, members or beneficial owners in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by, the terms of this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.

(i)  Exchange Offer .  Upon the occurrence of the Exchange Offer in accordance with the Registration Rights Agreement, the Issuer shall issue and, upon receipt of an Authentication Order in accordance with Section 2.02 of this Indenture, the Trustee shall authenticate (i) one or more Global Notes without the Restricted Notes Legend in an aggregate principal amount equal to the principal amounts of the beneficial interests in the Global Notes tendered for acceptance by Persons that provide such certifications as are required by the Registration Rights Agreement and applicable law, and accepted for exchange in the Exchange Offer and (ii), if applicable, Definitive Notes without the Restricted Notes Legend in an aggregate principal amount equal to the principal amount of the Definitive Notes tendered for acceptance by Persons that provide in the applicable letters of transmittal such certification as are required by the Registration Rights Agreement and applicable law, and accepted for exchange in the Exchange Offer.  Concurrently with the issuance of such Notes, the Trustee shall cause the aggregate principal amount of the applicable Global Notes with the Restricted Notes Legend to be reduced accordingly, and, if applicable, the Issuer shall execute and the Trustee shall authenticate and mail to the Persons designated by the Holders of the Definitive Notes so accepted Definitive Notes without the Restricted Notes Legend in the applicable principal amount.  Any Notes that remain outstanding after the consummation of the Exchange Offer, and Exchange Notes issued in connection with the Exchange Offer, shall be treated as a single class of securities under this Indenture.

Section 2.3           Definitive Notes .

(a)  A Global Note deposited with the Depositary or with the Trustee as Custodian pursuant to Section 2.1 or issued in connection with an Exchange Offer may be transferred to the beneficial owners thereof in the form of Definitive Notes in an aggregate principal amount equal to the principal amount of such Global Note, in exchange for such Global Note, only if such transfer complies with Section 2.2 of this Appendix A and (i) the Depositary notifies the Issuer that it is unwilling or unable to continue as a Depositary for such Global Note or if at any time the Depositary ceases to be a “clearing agency” registered under the Exchange Act and, in each case, a successor depositary is not appointed by the Issuer within 90 days of such notice or after the Issuer becomes aware of such cessation, (ii) the Issuer, at its option, notifies the Trustee in writing that it elects to cause the issuance of Definitive Notes and any Agent Member requests a Definitive Note in accordance with the procedures of the Depositary, or (iii) an Event of Default has occurred and is continuing and the Registrar has received a request from the Depository.  In addition, any affiliate of the Issuer or any Subsidiary Guarantor that is a beneficial owner of all or part of a Global Note may have such affiliate’s beneficial interest transferred to such affiliate in the form of a Definitive Note by providing a written request to the Issuer and the Trustee and such Opinions of Counsel, certificates or other information as may be required by this Indenture or the Issuer or Trustee.  Notwithstanding anything to the contrary in this Section 2.3, no Regulation S Global Note may be exchanged for a Definitive Note until the end of the Distribution Compliance Period applicable to such Regulation S Global Note and receipt by the Trustee and the Issuer of any certificates required by either of them pursuant to Rule 903(b)(3)(ii)(B) under the Securities Act.
-9-
 
(b)  Any Global Note that is transferable to the beneficial owners thereof pursuant to this Section 2.3 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 Note, an equal aggregate principal amount of Definitive Notes of authorized denominations.  Any portion of a Global Note transferred pursuant to this Section 2.3 shall be executed, authenticated and delivered only in denominations of $2,000 and integral multiples of $1,000 in excess thereof and registered in such names as the Depositary shall direct.  Any Definitive Note delivered in exchange for an interest in a Global Note that is a Transfer Restricted Note shall, except as otherwise provided by Section 2.2(e) of this Appendix A, bear the Restricted Notes Legend.

(c)  The registered Holder of a Global Note may grant proxies and otherwise authorize any Person, including Agent Members and Persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under this Indenture or the Notes.

(d)  In the event of the occurrence of any of the events specified in Section 2.3(a) of this Appendix A, the Issuer shall promptly make available to the Trustee a reasonable supply of Definitive Notes in fully registered form without interest coupons.
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EXHIBIT A
 
[FORM OF FACE OF NOTE]

[Insert the Restricted Notes Legend, if applicable, pursuant to the provisions of the Indenture]

[Insert the Global Notes Legend, if applicable, pursuant to the provisions of the Indenture]

[Insert the Definitive Notes Legend, if applicable, pursuant to the provisions of the Indenture]

[Insert the ERISA Legend, if applicable, pursuant to the provisions of the Indenture.]


A-1

CUSIP [                     ]
ISIN [                     ] 1



[RULE 144A][REGULATION S][IAI][GLOBAL] NOTE

9.75% Senior Notes due 2023



No. [RA-__] [RS-__] [RIAI-__] [U-__]

Principal Amount [$______________], as revised by the Schedule of Exchanges of Interests in Global Security attached hereto
 

 

BLUE CUBE SPINCO INC.



promises to pay to [CEDE & CO.] [_______________] or registered assigns the principal sum [set forth on the Schedule of Exchanges of Interests in the Global Note attached hereto] [of $_______ (_______ Dollars)] on October 15, 2023.

Interest Payment Dates:  April 15 and October 15

Record Dates:  April 1 and October 1



1 Rule 144A Note CUSIP:  095370 AA0
Rule 144A Note ISIN:   US095370 AA0
Regulation S Note CUSIP:  U0936P AA8
Regulation S Note ISIN:  USU0936PAA85
IAI Note CUSIP: 095370AE2
IAI Note ISIN:  US095370AE22
CUSIP for Unrestricted Global Note:  095370 AB8
ISIN for Unrestricted Global Note:  US095370AB82
 
A-2
 
IN WITNESS HEREOF, the Issuer has caused this instrument to be duly executed.

Dated:
 
 
BLUE CUBE SPINCO INC.
 
       
 
By:
   
    Name:  
    Title:  
       
 
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CERTIFICATE OF AUTHENTICATION

This is one of the Notes referred to in the within-mentioned Indenture:
 
 
 
U.S. BANK NATIONAL ASSOCIATION, as Trustee
 
       
 
By:
   
   
Authorized Signatory
 
     
     
 
       
Dated:      
 
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[Reverse Side of Note]

9.75% Senior Notes due 2023

Capitalized terms used herein shall have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.

1.              INTEREST.  Blue Cube Spinco Inc., a Delaware corporation (the “ Issuer ”), promises to pay interest on the principal amount of this Note at 9.75% per annum until but excluding maturity and shall pay Additional Interest, if any, payable pursuant to the Registration Rights Agreement referred to below.  The Issuer shall pay interest semi-annually in arrears on April 15 and October 15 of each year, or if any such day is not a Business Day, on the next succeeding Business Day (each, an “ Interest Payment Date ”).  Interest on the Notes shall accrue from the most recent date to which interest has been paid or, if no interest has been paid, from and including [__________]; provided that the first Interest Payment Date shall be [__________].  The Issuer shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal and premium, if any, from time to time on demand at the interest rate on the Notes to the extent lawful; it shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest (without regard to any applicable grace periods) from time to time on demand at the interest rate on the Notes to the extent lawful.  Interest shall be computed on the basis of a 360-day year comprised of twelve 30-day months.

2.              METHOD OF PAYMENT.  The Issuer shall pay interest on the Notes to the Persons who are registered holders of Notes at the close of business on the April 1 or October 1 (whether or not a Business Day), as the case may be, immediately preceding the related Interest Payment Date, even if such Notes are canceled after such Record Date and on or before such Interest Payment Date, except as provided in Section 2.12 of the Indenture with respect to defaulted interest.  Principal, premium, if any, and interest on the Notes shall be payable at the office or agency of the Issuer maintained for such purpose or, at the option of the Issuer, payment of interest and premium, if any, may be made by check mailed to the Holders at their respective addresses set forth in the Note Register; provided that payment by wire transfer of immediately available funds shall be required with respect to principal, premium, if any, and interest on all Global Notes and all other Notes the Holders of which shall have provided wire transfer instructions to the Issuer or the Paying Agent at least five Business Days prior to the applicable payment date.  Such payment shall be in such coin or currency of the United States as at the time of payment is legal tender for payment of public and private debts.

3.              PAYING AGENT AND REGISTRAR.  Initially, U.S. Bank National Association, the Trustee under the Indenture, shall act as Paying Agent and Registrar.  The Issuer may change any Paying Agent or Registrar without notice to the Holders.  The Issuer may act in any such capacity.

4.              INDENTURE.  The Issuer issued the Notes under an Indenture, dated as of October 5, 2015, between Blue Cube Spinco Inc. and the Trustee (as amended or supplemented from time to time, the “ Indenture ”).  This Note is one of a duly authorized issue of notes of the Issuer designated as its 9.75% Senior Notes due 2023.  The Issuer shall be entitled to issue Additional Notes pursuant to Section 2.01 and 4.06 of the Indenture.  The Notes and any Additional Notes issued under the Indenture shall be treated as a single class of securities under the Indenture.  The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended.  The Notes are subject to all such terms, and Holders are referred to the Indenture and the Trust Indenture Act for a statement of such terms.  Any term used in this Note that is defined in the Indenture shall have the meaning assigned to it in the Indenture.  To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling.
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5.              REDEMPTION AND REPURCHASE.  The Notes are subject to optional redemption, and may be the subject of an Offer to Purchase, as further described in the Indenture.  The Issuer shall not be required to make mandatory redemption or sinking fund payments with respect to the Notes.

6.              DENOMINATIONS, TRANSFER, EXCHANGE.  The Notes are in registered form without coupons in denominations of $2,000 and integral multiples of $1,000 in excess thereof.  The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture.  The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents, and Holders shall be required to pay any taxes and fees required by law or permitted by the Indenture.  The Issuer need not exchange or register the transfer of any Note or portion of a Note selected for redemption or tendered for repurchase in connection with a Change of Control Offer or Asset Sale Offer, except for the unredeemed portion of any Note being redeemed or repurchased in part.

7.              PERSONS DEEMED OWNERS.  The registered Holder of a Note may be treated as its owner for all purposes.

8.              AMENDMENT, SUPPLEMENT AND WAIVER.  The Indenture, the Guarantees or the Notes may be amended or supplemented as provided in the Indenture.

9.              DEFAULTS AND REMEDIES.  The Events of Default relating to the Notes are defined in Section 6.01 of the Indenture.  Upon the occurrence of an Event of Default, the rights and obligations of the Issuer, the Subsidiary Guarantors, the Trustee and the Holders shall be as set forth in the applicable provisions of the Indenture.

10.              AUTHENTICATION.  This Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose until authenticated by the manual signature of the Trustee.

11.              ADDITIONAL RIGHTS OF HOLDERS OF TRANSFER RESTRICTED NOTES.  In addition to the rights provided to Holders under the Indenture, Holders of Transfer Restricted Notes shall have all the rights set forth in a Registration Rights Agreement, including the right to receive Additional Interest if payable thereunder.

12.              GOVERNING LAW.  THIS NOTE WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

13.              CUSIP AND ISIN NUMBERS.  Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Issuer has caused CUSIP and ISIN numbers to be printed on the Notes, and the Trustee may 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 Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.

The Issuer shall furnish to any Holder upon written request and without charge a copy of the Indenture and the Registration Rights Agreement.
 
A-6
 
ASSIGNMENT FORM
To assign this Note, fill in the form below:
 
(I) or (we) assign and transfer this Note to:                                                                                                                                                                                                                                                                                                               
(Insert assignee’s legal name)
 
                                                                                                                                                                                                                                                                                    
     (Insert assignee’s soc. sec. or tax I.D. no.)
 
                                                                                                                                                                                
   
                                                                                                                                                                                
   
                                                                                                                                                                                
   
                                                                                                                                                                                
                                                                                     (Print or type assignee’s name, address and zip code)
and irrevocably appoint                                                                                                                                                                                                                                                                                                                                               
to transfer this Note on the books of the Issuer.  The agent may substitute another to act for him.

Date:  _____________________

 
   
       
 
Your Signature:
   
    (Sign exactly as your name appears on the face of this Note)  
     
       

 
Signature Guarantee*:  __________________________________


* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
 
A-7
 
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR
REGISTRATION OF TRANSFERS OF TRANSFER RESTRICTED NOTES


This certificate relates to $_________ principal amount of Notes held in (check applicable space) ____ book-entry or _____ definitive form by the undersigned.

The undersigned (check one box below):
 
☐
  has requested the Trustee by written order to deliver in exchange for its beneficial interest in a Global Note held by the Depositary a Note or Notes in definitive, registered form of authorized denominations and an aggregate principal amount equal to its beneficial interest in such Global Note (or the portion thereof indicated above) in accordance with the Indenture; or
 
 
☐
has requested the Trustee by written order to exchange or register the transfer of a Note or Notes.
 
In connection with any transfer of any of the Notes evidenced by this certificate, the undersigned confirms that such Notes are being transferred in accordance with its terms:

CHECK ONE BOX BELOW

(1)              ☐ to the Issuer or subsidiary thereof; or
 
(2)        ☐ to the Registrar for registration in the name of the Holder, without transfer; or
 
(3)          ☐ pursuant to an effective registration statement under the Securities Act of 1933, as amended (the “ Securities Act ”); or
 
(4)          ☐ to a Person that the undersigned reasonably believes is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act (“ Rule 144A ”)) that purchases for its own account or for the account of a qualified institutional buyer and to whom notice is given that such transfer is being made in reliance on Rule 144A, in each case pursuant to and in compliance with Rule 144A; or
 
(5)          ☐ pursuant to offers and sales to non-U.S. persons that occur outside the United States within the meaning of Regulation S under the Securities Act (and if the transfer is being made prior to the expiration of the Distribution Compliance Period, the Notes shall be held immediately thereafter through Euroclear or Clearstream); or
 
(6)          ☐ to an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act) that has furnished to the Trustee a signed letter containing certain representations and agreements; or
 
(7)          ☐ pursuant to Rule 144 under the Securities Act; or
 
(8)          ☐ pursuant to another available exemption from registration under the Securities Act.
 
Unless one of the boxes is checked, the Trustee will refuse to register any of the Notes evidenced by this certificate in the name of any Person other than the registered Holder thereof; provided , however , that if box (5), (6), (7) or (8) is checked, the Issuer or the Trustee may require, prior to registering any such transfer of the Notes, such legal opinions, certifications and other information as the Issuer or the Trustee has reasonably requested to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act.
 
A-8
 
 
       
 
 
    
   
Your Signature
 
 
 
       
Date: ____________________
 
    
   
Signature of Signature
Guarantor
 
 
 
TO BE COMPLETED BY PURCHASER IF (4) ABOVE IS CHECKED.

The undersigned represents and warrants that it is purchasing this Note for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Issuer as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption from registration provided by Rule 144A.
 
         
Dated: _______________________
   
   
 
     
NOTICE:           
 To be executed by an executive officer  
           
 
   
Name:
 
 
   
Title:
 
 
 
 
 
 

Signature Guarantee*:  __________________________________
 

* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
 
A-9
 
 
TO BE COMPLETED IF THE HOLDER REQUIRES AN EXCHANGE FROM A
REGULATION S GLOBAL NOTE TO AN UNRESTRICTED GLOBAL NOTE,
PURSUANT TO SECTION 2.2(d)(iii) OF APPENDIX A TO THE INDENTURE 2

The undersigned represents and warrants that either:
 
☐
the undersigned is not a dealer (as defined in the Securities Act) and is a non-U.S. person (within the meaning of Regulation S under the Securities Act); or
 
 
☐
the undersigned is not a dealer (as defined in the Securities Act) and is a U.S. person (within the meaning of Regulation S under the Securities Act) who purchased interests in the Notes pursuant to an exemption from, or in a transaction not subject to, the registration requirements under the Securities Act; or
   
☐
the undersigned is a dealer (as defined in the Securities Act) and the interest of the undersigned in this Note does not constitute the whole or a part of an unsold allotment to or subscription by such dealer for the Notes.
 
 
       
Dated: ____________________
 
    
   
Your Signature
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 


2 Include only for Regulation S Global Notes.
 
A-10
 
OPTION OF HOLDER TO ELECT PURCHASE

If you want to elect to have this Note purchased by the Issuer pursuant to Section 4.10 or Section 4.11 of the Indenture, check the appropriate box below:

[   ] Section 4.10                                          [   ] Section 4.11


If you want to elect to have only part of this Note purchased by the Issuer pursuant to Section 4.10 or Section 4.11 of the Indenture, state the amount you elect to have purchased:
 
$_______________ (integral multiples of $1,000,
provided that the unpurchased
portion must be in a minimum
principal amount of $2,000)


Date:  _____________________
 
 
 
     Your Signature:    
   
 
(Sign exactly as your name appears on the face of this Note)   
    Tax Identification No.:             
       
       
 
 
Signature Guarantee*:  __________________________________

* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
 
A-11
 
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*

The initial outstanding principal amount of this Global Note is $__________.  The following exchanges of a part of this Global Note for an interest in another Global Note or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note for an interest in this Global Note or other increase or decrease in the principal amount of this Global Note, have been made:
 
Date
 
Amount of decrease
in Principal Amount of this Global Note
 
Amount of increase
in Principal
Amount of this
Global Note
 
Principal Amount of
this Global Note
following such
decrease or increase
 
Signature of authorized signatory of Trustee
                 
                 
                 
                 
                 
                 
                 

 
 

 
__________________
*This schedule should be included only if the Note is issued in global form.
 
A-12
 
EXHIBIT B
 
FORM OF
TRANSFEREE LETTER OF REPRESENTATION


Ladies and Gentlemen:

This certificate is delivered to request a transfer of $[_______] principal amount of the 9.75% Senior Notes due 2023 (the “ Notes ”) of Blue Cube Spinco Inc. (the “ Issuer ”).
 
Upon transfer, the Notes would be registered in the name of the new beneficial owner as follows:

Name:                                    

Address:                                 

Taxpayer ID Number:____________

The undersigned represents and warrants to you that:

1.  We are an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended (the “ Securities Act ”)), purchasing for our own account or for the account of such an institutional “accredited investor” at least $250,000 principal amount of the Notes, and we are acquiring the Notes, for investment purposes and not with a view to, or for offer or sale in connection with, any distribution in violation of the Securities Act.  We have such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of our investment in the Notes, and we invest in or purchase securities similar to the Notes in the normal course of our business.  We, and any accounts for which we are acting, are each able to bear the economic risk of our or its investment.

2.  We understand that the Notes have not been registered under the Securities Act and, unless so registered, may not be sold except as permitted in the following sentence.  We agree on our own behalf and on behalf of any investor account for which we are purchasing Notes to offer, sell or otherwise transfer such Notes prior to the date that is one year after the later of the date of original issue and the last date on which the Issuer or any affiliate of the Issuer was the owner of such Notes (or any predecessor thereto) (the “ Resale Restriction Termination Date ”) only in accordance with the Restricted Notes Legend (as such term is defined in the indenture under which the Notes were issued) on the Notes and any applicable securities laws of any state of the United States.  The foregoing restrictions on resale will not apply subsequent to the Resale Restriction Termination Date.  If any resale or other transfer of the Notes is proposed to be made pursuant to clause (e) above prior to the Resale Restriction Termination Date, the transferor shall deliver a letter from the transferee substantially in the form of this letter to the Issuer and the Trustee, which shall provide, among other things, that the transferee is an institutional “accredited investor” within the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act and that it is acquiring such Notes for investment purposes and not for distribution in violation of the Securities Act.  Each purchaser acknowledges that the Issuer and the Trustee reserve the right prior to the offer, sale or other transfer prior to the Resale Restriction Termination Date of the Notes with respect to applicable transfers described in the Restricted Notes Legend to require the delivery of an opinion of counsel, certifications and/or other information satisfactory to the Issuer and the Trustee.
 
 
 
                                                                                                TRANSFEREE: __________________________,
TRANSFEREE:
 
 
B-1
                                  by:                                    
 
B-2
                                                        
EXHIBIT C
 
FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS
 
Supplemental Indenture (this “ Supplemental Indenture ”), dated as of [__________] [__], 20[__], among __________________ (the “ Guaranteeing Subsidiary ”), a subsidiary of Blue Cube Spinco Inc., a Delaware corporation (the “ Issuer ”), and U.S. Bank National Association, as trustee (the “ Trustee ”).

W I T N E S S E T H

WHEREAS, the Issuer has heretofore executed and delivered to the Trustee an indenture (the “ Indenture ”), dated as of October 5, 2015, providing for the issuance of an unlimited aggregate principal amount of 9.75% Senior Notes due 2023 (the “ Notes ”);

WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental indenture pursuant to which the Guaranteeing Subsidiary shall unconditionally Guarantee all of the Issuer’s Obligations under the Notes and the Indenture on the terms and conditions set forth herein and under the Indenture; and

WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute and deliver this Supplemental Indenture.

NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties mutually covenant and agree for the equal and ratable benefit of the Holders as follows:

1.              Capitalized Terms .  Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.

2.              Guarantor .  The Guaranteeing Subsidiary hereby agrees to be a Subsidiary Guarantor under the Indenture and to be bound by the terms of the Indenture applicable to Subsidiary Guarantors, including Article 11 thereof.

3.              Governing Law .  THIS SUPPLEMENTAL INDENTURE WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

4.              Waiver of Jury Trial .  EACH OF THE GUARANTEEING SUBSIDIARY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS SUPPLEMENTAL INDENTURE, THE INDENTURE, THE NOTES, THE GUARANTEES OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.

5.              Counterparts .  The parties may sign any number of copies of this Supplemental Indenture.  Each signed copy shall be an original, but all of them together represent the same agreement.

6.              Trustee Makes No Representation .   The Trustee makes no representation as to the validity or sufficiency of this Supplemental Indenture.
C-1
 
7.              Headings .  The headings of the Sections of this Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part of this Supplemental Indenture and shall in no way modify or restrict any of the terms or provisions hereof.
C-2

IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed, all as of the date first above written.
 
 
[NAME OF GUARANTEEING SUBSIDIARY]
 
       
 
By:
   
    Name:    
    Title:    
       
 
 
 
U.S. BANK NATIONAL ASSOCIATION, as Trustee
 
       
 
By:
   
    Name:    
    Title:    
       
 
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EXHIBIT D
 
FIRST SUPPLEMENTAL INDENTURE

FIRST SUPPLEMENTAL INDENTURE, dated as of October 5, 2015 (this “ First Supplemental Indenture ”), among Blue Cube Spinco Inc., a Delaware corporation (the “ Issuer ”), Olin Corporation, a Virginia corporation (the “ Parent ”), and U.S. Bank National Association, as trustee (the “ Trustee ”), to that certain indenture dated as of October 5, 2015 between the Issuer and the Trustee (the “ Base Indenture ” and, together with the First Supplemental Indenture, the “ Indenture ”).

WITNESSETH :

WHEREAS, capitalized terms used and not defined herein shall have the meanings ascribed to such terms in the Base Indenture;

WHEREAS, the Issuer executed and delivered to the Trustee the Base Indenture, providing for the issuance of the Issuer’s 9.75% Senior Notes due 2023 (the “ Notes ”);

WHEREAS, Section 9.01 of the Base Indenture provides that the Issuer and the Trustee may amend or supplement the Base Indenture without the consent of Holders as provided in this First Supplemental Indenture;

WHEREAS, all conditions and requirements necessary to make this First Supplemental Indenture a valid and binding instrument in accordance with its terms and the terms of the Base Indenture have been satisfied; and

WHEREAS, the   Issuer, the Parent and the Trustee desire to execute and deliver this First Supplemental Indenture.

NOW, THEREFORE, in consideration of the premises and of the mutual covenants herein contained, the Issuer, the Parent and the Trustee hereby agree as follows:

Section 1.                            Amendments to the Base Indenture .

1.01.              The following definitions in Section 1.01 “Definitions” are hereby amended and restated in their entirety or added to Section 1.01 if not therein, as applicable, as follows:

“ Acquired Debt ” means Debt (1) of a Person (including an Unrestricted Subsidiary) existing at the time such Person becomes a Restricted Subsidiary, or is merged with or into the Parent or a Restricted Subsidiary, or (2) assumed in connection with the acquisition of assets from such Person. Acquired Debt shall be deemed to have been incurred, with respect to clause (1) of the preceding sentence, on the date such Person becomes a Restricted Subsidiary and, with respect to clause (2) of the preceding sentence, on the date of consummation of such acquisition of assets.

“ Asset Acquisition ” means:

(1) an Investment by the Parent or any Restricted Subsidiary in any other Person pursuant to which such Person shall become a Restricted Subsidiary, or shall be merged with or into the Parent or any Restricted Subsidiary; or

(2) the acquisition by the Parent or any Restricted Subsidiary of the assets of any Person which constitute all or substantially all of the assets of such Person, any division or line of business of such Person or any other properties or assets of such Person other than in the ordinary course of business and consistent with past practices.
 
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“ Asset Sale ” means any transfer, conveyance, sale, lease or other disposition (including, without limitation, dispositions pursuant to any consolidation or merger) by the Parent or any of its Restricted Subsidiaries to any Person in any single transaction or series of transactions of:

(i) Capital Stock in another Person (other than directors’ qualifying shares or shares or interests required to be held by foreign nationals pursuant to local law); or

(ii) any other property or assets (other than in the normal course of business, including any sale or other disposition of obsolete or permanently retired equipment);

provided, however , that the term “Asset Sale” shall exclude:

(1) any asset disposition permitted by Section 5.01 that constitutes a disposition of all or substantially all of the assets of the Parent and its Restricted Subsidiaries taken as a whole;

(2) any transfer, conveyance, sale, lease or other disposition of property or assets, the gross proceeds of which (exclusive of indemnities) do not exceed in any one or related series of transactions $25.0 million;

(3) sales or other dispositions of cash or Eligible Cash Equivalents;

(4) sales of interests in Unrestricted Subsidiaries;

(5) the sale and leaseback of any assets within 90 days of the acquisition thereof; provided that any assets acquired in the Transactions shall be deemed to have been acquired on the Issue Date;

(6) the disposition of assets that, in the good faith judgment of the Parent, are no longer used or useful in the business of such entity;

(7) a Restricted Payment or Investment that is otherwise permitted by this Indenture;

(8) any trade-in of equipment in exchange for other equipment; provided, however that in the good faith judgment of the Parent, the Parent or such Restricted Subsidiary receives equipment having a fair market value equal to or greater than the equipment being traded in;

(9) the creation of a Lien (but not the sale or other disposition of the property subject to such Lien);

(10) leases or subleases in the ordinary course of business to third persons not interfering in any material respect with the business of the Parent or any of its Restricted Subsidiaries and otherwise in accordance with the provisions of this Indenture;

(11) any disposition by a Restricted Subsidiary to the Parent or by the Parent or a Restricted Subsidiary to a Restricted Subsidiary;
 
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(12) dispositions of accounts receivable in connection with the collection or compromise thereof in the ordinary course of business and consistent with past practice;

(13) licensing or sublicensing of intellectual property or other general intangibles in accordance with industry practice in the ordinary course of business;

(14) any transfer of accounts receivable, or a fractional undivided interest therein, by a Receivable Subsidiary in a Qualified Receivables Transaction; or

(15) sales of accounts receivable to a Receivable Subsidiary pursuant to a Qualified Receivables Transaction for the fair market value thereof as determined by the Parent in good faith; including cash or other financial accommodation, such as the provision of letters of credit by such Receivable Subsidiary on behalf of or for the benefit of the transferor of such accounts receivable, in an amount at least equal to 75% of the fair market value thereof as determined by the Parent in good faith (for the purposes of this clause (15), Purchase Money Notes will be deemed to be cash).

For purposes of this definition, any series of related transactions that, if effected as a single transaction, would constitute an Asset Sale, shall be deemed to be a single Asset Sale effected when the last such transaction which is a part thereof is effected.

“ Board of Directors ” means:

(1)              with respect to the Parent or any Subsidiary, its board of directors or any duly authorized committee thereof;

(2)              with respect to a corporation, the board of directors of such corporation or any duly authorized committee thereof; and

(3)              with respect to any other entity, the board of directors or similar body of the general partner or managers of such entity or any duly authorized committee thereof.

“ Change of Control ” means the occurrence of any of the following after the Issue Date:

(1)              the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the property and assets of the Parent and its Subsidiaries, taken as a whole, to any “person” (as that term is used in Section 13(d)(3) of the Exchange Act), other than the Parent or one of the Parent’s wholly-owned Subsidiaries;

(2)              the adoption of a plan relating to the liquidation or dissolution of the Parent or the Issuer;

(3)              the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any “person” (as that term is used in Section 13(d)(3) of the Exchange Act) becomes the beneficial owner, directly or indirectly, of more than 50% of the Parent’s Voting Stock, measured by voting power rather than number of shares;

(4)              the merger or consolidation of the Parent with or into another Person or the merger of another Person with or into the Parent or the merger of any Person with or into a Subsidiary of the Parent, unless the holders of a majority of the aggregate voting power of the Voting Stock of the Parent, immediately prior to such transaction, hold securities of the surviving or transferee Person that represent, immediately after such transaction, at least a majority of the aggregate voting power of the Voting Stock of the surviving or transferee Person;
 

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(5)              the Parent ceases to own, directly or indirectly, 100% of all outstanding equity interests of the Issuer (except as a result of the merger of the Issuer with and into the Parent); or

(6)              for so long as any of the Existing Notes remain outstanding, the first day on which a majority of the members of the Parent’s Board of Directors are not Continuing Directors.

Notwithstanding the foregoing, the Transactions shall not constitute a Change of Control.

Notwithstanding the foregoing, a transaction effected to create a holding company for the Parent will not be deemed to involve a Change of Control if (a) pursuant to such transaction the Parent becomes a wholly-owned Subsidiary of such holding company and (b) the holders of the Voting Stock of such holding company immediately following such transaction are the same as the holders of the Parent’s Voting Stock immediately prior to such transaction.

“ Consolidated Cost Savings ” means, for any period, those synergies, operating expense reductions and cost-savings of the Parent and its Restricted Subsidiaries that are reasonably identifiable, factually supportable and projected by the Parent in good faith to be realized following the Issue Date as a result of restructurings, reorganizations, divestitures, cost savings initiatives, production rationalizations and other similar initiatives (collectively, “ Initiatives ”) (calculated on a pro forma basis as if such synergies, operating expense reductions and cost-savings had been realized on the first day of such period, and net of the amount of actual benefits realized during such period from such Initiatives to the extent already included in Consolidated Net Income for such period); provided that (i) no synergies, operating expense reductions or cost-savings shall be added to Consolidated EBITDA pursuant to clause (e) thereof to the extent duplicative of any expenses or charges otherwise added to (or excluded from) Consolidated EBITDA, whether through a pro forma adjustment or otherwise, for such period and (ii) projected amounts (and not yet realized) (x) may be added (the date on which such amounts are added, the “ Initiative Commencement Date ”) once actions in respect of such Initiative have been taken or are expected to be taken (in the good faith determination of the Parent) within 12 months and (y) may no longer be added back in calculating Consolidated EBITDA pursuant to clause (e) thereof to the extent occurring more than six full fiscal quarters after the Initiative Commencement Date.

“ Consolidated Debt Ratio ” means, as of any date of determination, the ratio of (1) the aggregate amount of Debt of the Parent and its Restricted Subsidiaries then outstanding as of such date of determination to (2) Consolidated EBITDA for the most recent four consecutive fiscal quarters for which internal financial statements of the Parent are available, in each case with pro forma and other adjustments to each of Debt and Consolidated EBITDA to reflect any incurrences or repayments of Debt and any acquisitions or dispositions of businesses or assets since the beginning of such four consecutive fiscal quarter period (which pro forma and other adjustments will be determined in good faith by a  responsible financial or accounting officer of the Parent and shall not be required to be made in accordance with Regulation S-X promulgated by the Commission).
 
“ Consolidated EBITDA ” means, for any period, Consolidated Net Income for such period (adjusted to exclude all extraordinary or unusual items and any gains or losses on sales of assets outside the ordinary course of business) plus, without duplication and (except with respect to synergies included in Consolidated Cost Savings) to the extent deducted in calculating such Consolidated Net Income for such period, the sum of (a) income tax expense, (b) interest expense, amortization or writeoff of debt discount with respect to Debt, (c) depreciation and amortization expense, (d) amortization of intangibles (including, but not limited to, goodwill) and organization costs, (e) Consolidated Cost Savings; provided that with respect to any period, the aggregate amount added back in the calculation of Consolidated EBITDA for such period pursuant to this clause (e) and clause (f) below shall not exceed 20% of Consolidated EBITDA (in each case calculated prior to giving effect to any add-backs pursuant to this clause (e) and clause (f) below), (f) costs and expenses incurred in connection with the implementation of Initiatives; provided that with respect to any period, the aggregate amount added back in the calculation of Consolidated EBITDA for such period pursuant to this clause (f) and clause (e) above shall not exceed 20% of Consolidated EBITDA (in each case calculated prior to giving effect to any add-backs pursuant to this clause (f) and clause (e) above), (g) the sum (without duplication) of all non-recurring fees, costs and expenses incurred by the Parent and its Restricted Subsidiaries, whether before, on or within six months after the Merger Closing Date, in connection with the Transactions during such period; provided that the aggregate amount added back in the calculation of Consolidated EBITDA pursuant to this clause (g) shall not exceed $100,000,000, (h) all payments triggered in respect of the Parent’s non-qualified deferred compensation and post-retirement benefit plans in connection with the Transactions during such period, (i) any other non-cash charges and (j) adjustments and add-backs of the nature set forth in the Offering Memorandum under the section entitled “Summary—Summary historical and pro forma financial data”, minus, (x) any cash payments made during such period in respect of items described in clause (i) above subsequent to the fiscal quarter in which the relevant non-cash charge was reflected as a charge in the statement of Consolidated Net Income and (y) to the extent included in calculating such Consolidated Net Income for such period, any non-cash income (other than amounts accrued in the ordinary course of business under accrual-based revenue recognition procedures in accordance with GAAP).
 

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“ Consolidated Fixed Charge Coverage Ratio ” means, with respect to any Person, the ratio of Consolidated EBITDA of such Person during the four full fiscal quarters for which financial statements are available (the “ Four Quarter Period ”) ending prior to the date of the transaction giving rise to the need to calculate the Consolidated Fixed Charge Coverage Ratio (the “ Transaction Date ”) to Consolidated Fixed Charges of such Person for the Four Quarter Period. In addition to and without limitation of the foregoing, for purposes of this definition, “Consolidated EBITDA” and “Consolidated Fixed Charges” shall be calculated after giving effect on a pro forma basis for the period of such calculation to:

(i)              the incurrence of any Debt of such Person or any of its Restricted Subsidiaries (and the application of the proceeds thereof) and the repayment of other Debt, other than the incurrence or repayment of Debt in the ordinary course of business for working capital purposes pursuant to working capital facilities, occurring during the Four Quarter Period or at any time subsequent to the last day of the Four Quarter Period and on or prior to the Transaction Date, as if such incurrence or repayment, as the case may be (and the application of the proceeds thereof), occurred on the first day of the Four Quarter Period; and

(ii)              any Asset Sales or Asset Acquisitions (including, without limitation, any Asset Acquisition giving rise to the need to make such calculation as a result of such Person or one of its Restricted Subsidiaries (including any Person who becomes a Restricted Subsidiary as a result of the Asset Acquisition) incurring, assuming or otherwise being liable for Acquired Debt and also including any Consolidated EBITDA attributable to the assets which are the subject of the Asset Acquisition) occurring during the Four Quarter Period or at any time subsequent to the last day of the Four Quarter Period and on or prior to the Transaction Date, as if such Asset Sale or Asset Acquisition (including the incurrence, assumption or liability for any such Acquired Debt) occurred on the first day of the Four Quarter Period.

For purposes of this definition, pro forma calculations shall be made in good faith by a responsible financial or accounting officer of the Parent and shall not be required to be made in accordance with Regulation S-X promulgated under the Securities Act, and such pro forma calculations may also include operating expense reductions for such period resulting from the Asset Sale or Asset Acquisition (as determined in good faith by senior management of the Parent) for which pro forma effect is being given (A) that have been realized or (B) for which steps have been taken or are reasonably expected to be taken within six months of the date of such transaction and are supportable and quantifiable and, in each case, including, but not limited to (a) reduction in personnel expenses, (b) reduction of costs related to administrative functions, (c) reduction of costs related to leased or owned properties and (d) reductions from the consolidation of operations and streamlining of corporate overhead.
 
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Furthermore, in calculating “Consolidated Fixed Charges” for purposes of determining the denominator (but not the numerator) of this “Consolidated Fixed Charge Coverage Ratio”:

(i)              interest on outstanding Debt determined on a fluctuating basis as of the Transaction Date and which will continue to be so determined thereafter shall be deemed to have accrued at a fixed rate per annum equal to the rate of interest on such Debt in effect on the Transaction Date;

(ii)              if interest on any Debt actually incurred on the Transaction Date may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rates, then the interest rate in effect on the Transaction Date will be deemed to have been in effect during the Four Quarter Period; and

(iii)              notwithstanding clause (i) or (ii) above, interest on Debt determined on a fluctuating basis, to the extent such interest is covered by agreements relating to Hedging Obligations, shall be deemed to accrue at the rate per annum resulting after giving effect to the operation of such agreements.

“ Consolidated Net Income ” means, for any period, the consolidated net income (or loss) of the Parent and its Restricted Subsidiaries, determined on a consolidated basis in accordance with GAAP; provided that there shall be excluded (a) the income (or deficit) of any Person accrued prior to the date it becomes a Restricted Subsidiary of the Parent or is merged into or consolidated with the Parent or any of its Restricted Subsidiaries, (b) the income (or deficit) of any Person (other than a Restricted Subsidiary of the Parent) in which the Parent or any of its Restricted Subsidiaries has an ownership interest, except to the extent that any such income is actually received by the Parent or such Subsidiary in the form of dividends or similar distributions and (c) solely for the purposes of Section 4.05, the undistributed earnings of any Restricted Subsidiary of the Parent to the extent that the declaration or payment of dividends or similar distributions by such Restricted Subsidiary is not at the time permitted by the terms of any contractual obligation or any law applicable to such Restricted Subsidiary.

“ Consolidated Net Tangible Assets ” means the total amount of the Parent’s consolidated assets after deducting therefrom (i) all current liabilities, excluding any thereof which are by their terms extendible or renewable at the option of the obligor thereon to a time more than 12 months after the time as of which the amount thereof is being computed and (ii) unamortized Debt discount and expense, goodwill, trademarks, brand names, patents and other intangible assets, all as shown on the Parent’s latest audited consolidated financial statements at the time of the determination.

“ Continuing Director ” means, as of any date of determination, any member of the Parent’s Board of Directors who (i) was a member of such Board of Directors on the first date that the Notes were issued or (ii) was nominated for election or elected to the Parent’s Board of Directors with the approval (for purposes of the Notes) of a majority of the Continuing Directors who were members of the Parent’s Board of Directors at the time of such nomination or election.
 
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“ Credit Agreement ” means the credit agreements, dated as of June 23, 2015 (as amended, supplemented or otherwise modified from time to time), among the Issuer or the Parent, as applicable, the other borrowers party thereto, Wells Fargo Bank, National Association, as administrative agent, and the other agents and lenders named therein, providing for (i) a revolving credit facility, which, upon the consummation of the Merger on the Merger Closing Date, shall provide for borrowings by the Parent and Olin Canada ULC and will be guaranteed by the Issuer and (ii) a term loan facility, which shall provide for borrowings by the Issuer and, upon the consummation of the Merger on the Merger Closing Date, will be guaranteed by the Parent, together with all related notes, letters of credit, guarantees, and any other related agreements and instruments executed and delivered in connection therewith, in each case as amended, modified, supplemented, restated, refinanced, refunded or replaced in whole or in part from time to time including by or pursuant to any agreement or instrument that exchanges, extends, refinances, renews, replaces, substitutes or otherwise restructures the maturity of any indebtedness thereunder, or increases the amount of available borrowings thereunder, or adds Subsidiaries of the Parent as additional borrowers or guarantors thereunder, in each case with respect to such agreement or any successor or replacement agreement and whether by the same or any other agent, lender, group of lenders,
purchasers, institutional investors or debt holders.

“ Debt ” means any notes, bonds, debentures, loans or other similar evidences of indebtedness for money borrowed, issued, assumed or guaranteed by the Parent or any Restricted Subsidiary.

“ Debt Facility ” means one or more debt facilities (including, without limitation, the Credit Agreement and the Sumitomo Credit Agreement) or commercial paper facilities with banks or other institutional lenders providing for revolving credit loans, term loans, receivables financing (including through the sale of receivables to such lenders or to special purpose entities formed to borrow from such lenders against such receivables) or letters of credit or issuances of debt securities evidenced by notes, debentures, bonds or similar instruments, in each case, as amended, restated, modified, renewed, refunded, replaced or refinanced (including by means of sales of debt securities) in whole or in part from time to time (and whether or not with the original administrative agent, lenders or trustee or another administrative agent or agents, other lenders or trustee and whether provided under the original Credit Agreement and the original Sumitomo Credit Agreement or any other credit or other agreement or indenture).
 
“ Designated Non-cash Consideration ” means the fair market value as determined in good faith by the Parent of non-cash consideration received by the Parent or a Restricted Subsidiary in connection with an Asset Sale that is so designated as Designated Non-cash Consideration pursuant to an Officers’ Certificate, setting forth the basis of such valuation less the amount of cash or Eligible Cash Equivalents received in connection with a subsequent sale of or collection on such Designated Non-cash Consideration.

“ Eligible Cash Equivalents ” means any of the following Investments: (i) securities issued or directly and fully guaranteed or insured by the United States or any agency or instrumentality thereof ( provided that the full faith and credit of the United States is pledged in support thereof) maturing not more than one year after the date of acquisition; (ii) time deposits in and certificates of deposit of any Eligible Bank, provided that such Investments have a maturity date not more than two years after date of acquisition and that the Average Life of all such Investments is one year or less from the respective dates of acquisition; (iii) repurchase obligations with a term of not more than 180 days for underlying securities of the types described in clause (i) above entered into with any Eligible Bank; (iv) direct obligations issued by any state of the United States or any political subdivision or public instrumentality thereof, provided that such Investments mature, or are subject to tender at the option of the holder thereof, within 365 days after the date of acquisition and, at the time of acquisition, have a rating of at least A from S&P or A-2 from Moody’s (or an equivalent rating by any other nationally recognized rating agency); (v) commercial paper of any Person other than an affiliate of the Parent and other than structured investment vehicles, provided that such Investments have one of the two highest ratings obtainable from either S&P or Moody’s and mature within 180 days after the date of acquisition; (vi) overnight and demand deposits in and bankers’ acceptances of any Eligible Bank and demand deposits in any bank or trust company to the extent insured by the Federal Deposit Insurance Corporation against the Bank Insurance Fund; (vii) money market funds 95% of the assets of which comprise Investments of the types described in clauses (i) through (vi); and (viii) instruments equivalent to those referred to in clauses (i) through (vi) above or funds equivalent to those referred to in clause (vii) above denominated in U.S. dollars, Euros or any other foreign currency comparable in credit quality and tender to those referred to in such clauses and customarily used by corporations for cash management purposes in jurisdictions outside the United States to the extent reasonably required in connection with any business conducted by any Restricted Subsidiary organized in such jurisdiction, all as determined in good faith by the Parent.
 
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“ Excluded Contributions ” means the net cash proceeds received by the Parent after the Issue Date from:

(1) contributions to its common equity capital, and

(2) the sale (other than to a Restricted Subsidiary of the Parent or to any Parent management equity plan or stock option plan or any other management or employee benefit plan or agreement) of Capital Stock (other than Redeemable Capital Interests and preferred stock) of the Parent;

provided, however that such net cash proceeds will be designated by the Parent as “Excluded Contributions” in an Officers’ Certificate delivered to the Trustee and the net cash proceeds so designated will be excluded from the calculation set forth in Section 4.05(a)(iii).

“ Existing Notes ” means the Parent’s (i) 5.50% Senior Notes due 2022 and 6.75% Senior Notes due 2016, (ii) SunBelt Notes due 2012-2017, issued on December 22, 1997 and (iii) Variable-rate 2024 Bonds issued on October 14, 2010, Recovery Zone Bonds issued on December 9, 2010 and Recovery Zone Bonds due 2035 issued on December 27, 2010.

“ Guarantee ” means, with respect to the Notes, the Guarantee of the Parent or a Subsidiary Guarantor pursuant to the terms of this Indenture.
 
“ Investment ” by any Person means any direct or indirect loan, advance, guarantee for the  benefit of (or other extension of credit) or capital contribution to (by means of any transfer of cash or other property or assets to another Person or any other payments for property or services for the account or use of another Person) another Person, including, without limitation, the following: (i) the purchase or acquisition of any Capital Stock or other evidence of beneficial ownership in another Person; (ii) the purchase, acquisition or guarantee of the Debt of another Person; and (iii) the purchase or acquisition of the business or assets of another Person substantially as an entirety but shall exclude: (a) accounts receivable and other extensions of trade credit in accordance with the Parent’s customary practices; (b) the acquisition of property and assets from suppliers and other vendors in the normal course of business; and (c) prepaid expenses and workers’ compensation, utility, lease and similar deposits, in the normal course of business.

For purposes of Section 4.05 and the definition of “Unrestricted Subsidiary”:

(1)              “Investment” will include the portion (proportionate to the Parent’s equity interest in the Restricted Subsidiary to be designated as an Unrestricted Subsidiary) of the fair market value as determined by the Parent in good faith of the net assets of such Restricted Subsidiary of the Parent at the time that such Restricted Subsidiary is designated an Unrestricted Subsidiary; provided , however , that upon a redesignation of such Subsidiary as a Restricted Subsidiary, the Parent will be deemed to continue to have a permanent “Investment” in an Unrestricted Subsidiary in an amount (if positive) equal to (a) the Parent’s “Investment” in such Subsidiary at the time of such redesignation less (b) the portion (proportionate to the Parent’s equity interest in such Subsidiary) of the fair market value as determined by the Parent in good faith of the net assets of such Subsidiary at the time that such Subsidiary is so re-designated as a Restricted Subsidiary; and
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(2)              any property transferred to or from an Unrestricted Subsidiary will be valued at its fair market value at the time of such transfer, as determined by the Parent in good faith.

“ Moody’s ” means Moody’s Investors Services, Inc. and any successor to its rating agency business.
 
“ Net Cash Proceeds ” means, with respect to Asset Sales of any Person, cash and Eligible Cash Equivalents received, net of: (i) all reasonable out-of-pocket costs and expenses of such Person incurred in connection with such a sale, including, without limitation, all legal, accounting, title and recording tax expenses, commissions and other fees and expenses incurred and all federal, state, foreign and local taxes arising in connection with such an Asset Sale that are paid or required to be accrued as a liability under GAAP by such Person; (ii) all payments made by such Person on any Debt that is secured by such properties or other assets in accordance with the terms of any Lien upon or with respect to such properties or other assets or that must, by the terms of such Lien or such Debt, or in order to obtain a necessary consent to such transaction or by applicable law, be repaid to any other Person (other than the Parent or a Restricted Subsidiary thereof) in connection with such Asset Sale; and (iii) all contractually required distributions and other payments made to minority interest holders in Restricted Subsidiaries of such Person as a result of such transaction; provided, however , that: (a) in the event that any consideration for an Asset Sale (which would otherwise constitute Net Cash Proceeds) is required by (I) contract to be held in escrow pending determination of whether a purchase price adjustment will be made or (II) GAAP to be reserved against other liabilities in connection with such Asset Sale, such consideration (or any portion thereof) shall become Net Cash Proceeds only at such time as it is released to such Person from escrow or otherwise; and (b) any non-cash consideration received in connection with any transaction, which is subsequently converted to cash, shall become Net Cash Proceeds only at such time as it is so converted.

“ Non-Guarantor Subsidiary ” means any Restricted Subsidiary that is not a Subsidiary Guarantor or the Issuer.

“ 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 the Parent or the Issuer.
 
“ Permitted Asset Swap ” means the concurrent purchase and sale or exchange of properties or assets (other than securities) that are used or useful in a Permitted Business or a combination of such assets and cash or Eligible Cash Equivalents between the Parent or any of its Restricted Subsidiaries and another Person; provided, however that any cash and Eligible Cash Equivalents must be applied in accordance with Section 4.11.

“ Permitted Business ” means any business similar in nature to any business conducted by the Parent and the Restricted Subsidiaries on the Issue Date and any business reasonably ancillary, incidental, complementary or related to, or a reasonable extension, development or expansion of, the business conducted by the Parent and the Restricted Subsidiaries on the Issue Date, in each case, as determined in good faith by the Parent.
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“ Permitted Debt ” means

(1) Debt incurred by the Issuer, the Parent or any Subsidiary Guarantor pursuant to any Debt Facilities in an aggregate principal amount at any one time outstanding not to exceed (x) $2,880.0 million minus (y) any amount used to permanently repay such obligations (or permanently reduce commitments with respect thereto) pursuant to Section 4.11;

(2) Debt under (a) the Notes issued on the Issue Date and any Exchange Notes issued in exchange for such Notes and (b) the 2025 Notes issued on the Issue Date and any exchange notes issued in exchange for such notes;

(3) Guarantees of the Notes and any Exchange Notes issued in exchange for such Notes and guarantees of the 2025 Notes and any exchange notes issued in exchange for such notes;

(4) Debt of the Parent or any Restricted Subsidiary outstanding on the Issue Date (other than Debt incurred pursuant to clauses (1), (2) or (3) above) (including the Existing Notes);

(5) guarantees incurred by the Parent of Debt of a Restricted Subsidiary otherwise permitted to be incurred under this Indenture;

(6) guarantees by any Restricted Subsidiary of Debt of the Parent or any other Restricted Subsidiary, including guarantees by any Restricted Subsidiary of Debt under the Credit Agreement and the Sumitomo Credit Agreement; provided, however, that (a) such Debt is permitted to be incurred under this Indenture and (b) if the Debt being guaranteed is subordinated in right of payment to the Notes, such guarantees are subordinated to the Notes to the same extent, if any, as the Debt being guaranteed;

(7) Debt incurred in respect of workers’ compensation claims and self-insurance obligations, and, for the avoidance of doubt, indemnity, bid, performance, warranty, release, appeal, surety and similar bonds, letters of credit for operating purposes and completion guarantees provided or incurred (including guarantees thereof) by the Parent or a Restricted Subsidiary in the ordinary course of business;

(8) Debt under Swap Contracts and Hedging Obligations incurred in the ordinary course of business and not for speculative purposes;

(9) Debt owed by the Parent to any Restricted Subsidiary, or by any Restricted Subsidiary to the Parent or to any other Restricted Subsidiary, provided that if for any reason such Debt ceases to be held by the Parent or a Restricted Subsidiary, as applicable, such Debt shall cease to be Permitted Debt under this clause (9) and shall be deemed incurred as Debt of the Parent for purposes of this Indenture;

(10) Debt of the Parent or a Subsidiary Guarantor pursuant to capital lease obligations, synthetic lease obligations and Purchase Money Debt and any Refinancing Debt that Refinances any Debt incurred pursuant to this clause (10); provided , however that the aggregate principal amount of all Debt incurred under this clause (10) and outstanding at any time may not exceed $100.0 million in the aggregate;

(11) Debt arising from agreements of the Parent or a Restricted Subsidiary providing for indemnification, contribution, earnout, adjustment of purchase price or similar obligations, in each case, incurred or assumed in connection with the acquisition or disposition of any business, assets or Capital Stock of a Restricted Subsidiary otherwise permitted under this Indenture;
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(12) the issuance by any of the Parent’s Restricted Subsidiaries to the Parent or to any of its Restricted Subsidiaries of shares of Redeemable Capital Interests or preferred stock; provided , however , that:

(a) any subsequent issuance or transfer of Capital Stock that results in any such Redeemable Capital Interests being held by a Person other than the Parent or a Restricted Subsidiary; and

(b) any sale or other transfer of any such Redeemable Capital Interests to a Person that is not either the Parent or a Restricted Subsidiary;

shall be deemed, in each case, to constitute an issuance of such Redeemable Capital Interests by such Restricted Subsidiary that was not permitted by this clause (12);

(13) Debt 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 Debt is extinguished within five business days of incurrence;

(14) Debt of the Parent or a Restricted Subsidiary not otherwise permitted pursuant to this definition, in an aggregate principal amount not to exceed $150.0 million at any time outstanding;

(15) Purchase Money Notes incurred by any Receivable Subsidiary that is a Restricted Subsidiary in a Qualified Receivables Transaction and Non-Recourse Receivable Subsidiary Indebtedness;  p rovided , however that the aggregate amounts incurred and outstanding under all Qualified Receivables Transactions shall not exceed $250.0 million;

(16) Debt of Foreign Restricted Subsidiaries in an aggregate principal amount not to exceed $50.0 million at any one time outstanding;

(17) (x) Debt of the Parent, the Issuer or any Subsidiary Guarantor incurred or issued to finance an acquisition or (y) Acquired Debt; provided , however , that after giving pro forma effect to such acquisition, merger or consolidation, and the incurrence of such Debt (including pro forma application of the proceeds thereof), either:

(a) the Parent would be permitted to incur at least $1.00 of additional Coverage Debt pursuant to Section 4.06(a);

(b) the Consolidated Fixed Charge Coverage Ratio of the Parent and its Restricted Subsidiaries would not be lower than such ratio immediately prior to such acquisition, merger or consolidation; or

(c) such Debt constitutes Acquired Debt (other than Debt incurred in contemplation of the transaction or series of transactions pursuant to which such Person became a Restricted Subsidiary or was otherwise acquired by the Parent or a Restricted Subsidiary); provided that the only obligors with respect to such Debt shall be those Persons who were obligors of such Debt prior to such acquisition, merger or consolidation; and
 
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(18) Refinancing Debt that Refinances Coverage Debt or Debt incurred pursuant to clauses (2), (4), (17) or this clause (18) of this definition of “Permitted Debt.”

“ Permitted Investments ” means:

(1)              Investments in existence on the Issue Date;

(2)              Investments required pursuant to any agreement or obligation of the Parent or a Restricted Subsidiary, in effect on the Issue Date, to make such Investments;

(3)              Investments in cash and Eligible Cash Equivalents;

(4)              Investments in property and other assets, owned or used by the Parent or any Restricted Subsidiary in the normal course of business;

(5)              Investments by the Parent or any of its Restricted Subsidiaries in the Parent or any Restricted Subsidiary;

(6)              Investments by the Parent or any Restricted Subsidiary in a Person, if as a result of such Investment (A) such Person becomes a Restricted Subsidiary or (B) such Person is merged, consolidated or amalgamated with or into, or transfers or conveys substantially all of its assets to, or is liquidated or wound-up into, the Parent or a Restricted Subsidiary;

(7)              Swap Contracts and Hedging Obligations;

(8)              receivables owing to the Parent or any of its Restricted Subsidiaries and advances to suppliers, in each case if created, acquired or made in the ordinary course of business and payable or dischargeable in accordance with customary trade terms;

(9)              Investments received in settlement of obligations owed to the Parent or any Restricted Subsidiary and as a result of bankruptcy or insolvency proceedings or upon the foreclosure or enforcement of any Lien in favor of the Parent or any Restricted Subsidiary;

(10)              Investments by the Parent or any Restricted Subsidiary not otherwise permitted under this definition, in an aggregate amount not to exceed the greater of (i) $250.0 million and (ii) 5% of Consolidated Net Tangible Assets at any one time outstanding;

(11)              loans and advances to officers, directors and employees of the Parent and Restricted Subsidiaries in an aggregate amount not to exceed $10.0 million in the aggregate at any one time outstanding, for travel, entertainment, relocation and analogous ordinary business purposes;

(12)              Investments the payment for which consists solely of Capital Stock of the Parent;

(13)              any Investment in any Person to the extent such Investment represents the non- cash portion of the consideration received in connection with an Asset Sale consummated in compliance with Section 4.11 or any other disposition of property not constituting an Asset Sale;

(14)              payroll, travel 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 and consistent with past practice;
 
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(15)              guarantees by the Parent or any Restricted Subsidiary of Debt of the Parent or a Restricted Subsidiary (other than a Receivables Subsidiary) of Debt otherwise permitted by Section 4.06;

(16)              any Investment by the Parent or any Restricted Subsidiary in a Receivable Subsidiary or any Investment by a Receivable Subsidiary in any other Person in connection with a Qualified Receivables Transaction, so long as any Investment in a Receivable Subsidiary is in the form of a Purchase Money Note or an Investment in Capital Stock; and

(17)              other Investments in any Person that is a joint venture engaged in a Permitted Business (other than an Investment in an Unrestricted Subsidiary) having an aggregate fair market value as determined by the Parent in good faith (measured on the date each such Investment was made and without giving effect to subsequent changes in value), when taken together with all other Investments made pursuant to this clause (q) since the Issue Date and existing at the time of the Investment, which is the subject of the determination, was made, not to exceed the greater of (i) $125 million and (ii) 2.5% of Consolidated Net Tangible Assets.

“ Principal Property ” means any of the Parent’s properties or plants or the properties or plants of any Restricted Subsidiary primarily used for the manufacture of products and located within the United States or its territories or possessions, except any such property or plant which the Board of Directors of the Parent by resolution declares is not of material importance to the total business conducted by the Parent and its Subsidiaries as an entirety.

“ Purchase Money Note ” means a promissory note of a Receivable Subsidiary issued to the Parent or any Restricted Subsidiary, to pay all or a portion of the purchase price of receivables and assets related thereto described in the definition of “Qualified Receivables Transaction” that are purchased in connection with a Qualified Receivables Transaction. The repayment of a Purchase Money Note may be subordinated to the repayment of other liabilities of the Receivable Subsidiary on terms determined in good faith by the Parent to be substantially consistent with market practice in connection with Qualified Receivables Transactions.
 
“ Qualified Receivables Transaction ” means any transaction or series of transactions entered into by the Parent or any of its Restricted Subsidiaries pursuant to which the Parent or such Restricted Subsidiary transfers to (1) a Receivable Subsidiary (in the case of a transfer by the Parent or any of its Restricted Subsidiaries) or (2) any other Person (in the case of a transfer by a Receivable Subsidiary), or grants a security interest in, any accounts receivable (whether now existing or arising in the future) of the Parent or any of its Restricted Subsidiaries, and any assets related thereto, including, without limitation, all collateral securing such accounts receivable, all contracts and all guarantees or other obligations in respect of such accounts receivable, proceeds of such accounts receivable and other assets which are customarily transferred or in respect of which security interests are customarily granted in connection with an accounts receivable financing transaction; provided such transaction is on market terms as determined in good faith by the Parent at the time the Parent or such Restricted Subsidiary enters into such transaction.

“ Receivable Subsidiary ” means a Subsidiary of the Parent (other than the Issuer):

(1)              that is formed solely for the purpose of, and that engages in no activities other than activities in connection with, financing accounts receivable of the Parent and/or its Restricted Subsidiaries, including providing letters of credit on behalf of or for the benefit of the Parent and/or its Restricted Subsidiaries;
 
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(2)              that is designated by the Board of Directors of the Parent as a Receivable Subsidiary pursuant to an Officers’ Certificate that is delivered to the Trustee;

(3)              that is either (a) a Restricted Subsidiary or (b) an Unrestricted Subsidiary designated in accordance with the definition of “Unrestricted Subsidiary”;

(4)              no portion of the Debt or any other obligation (contingent or otherwise) of which (a) is at any time guaranteed by the Parent or any Restricted Subsidiary (excluding guarantees of obligations (other than any guarantee of Debt) pursuant to Standard Securitization Undertakings), (b) is at any time recourse to or obligates the Parent or any Restricted Subsidiary in any way, other than pursuant to Standard Securitization Undertakings or (c) subjects any asset of the Parent or any other Restricted Subsidiary of the Parent, directly or indirectly, contingently or otherwise, to the satisfaction thereof, other than pursuant to Standard Securitization Undertakings (such Debt, “Non-Recourse Receivable Subsidiary Indebtedness”);

(5)              with which neither the Parent nor any Restricted Subsidiary has any material contract, agreement, arrangement or understanding other than (a) contracts, agreements, arrangements and understandings entered into in connection with a Qualified Receivables Transaction, (b) fees payable in the ordinary course of business in connection with servicing accounts receivable in connection with such a Qualified Receivables Transaction as determined in good faith by the Board of Directors of the Parent and (c) any Purchase Money Note issued by such Receivable Subsidiary to the Parent or a Restricted Subsidiary or any letters of credit provided by such Receivable Subsidiary on behalf of or for the benefit of the Parent or any Restricted Subsidiary; and

(6)              with respect to which neither the Parent nor any other Restricted Subsidiary has any obligation (a) to subscribe for additional shares of Capital Stock therein or make any additional capital contribution or similar payment or transfer thereto except in connection with a Qualified Receivables Transaction or (b) to maintain or preserve the solvency or any balance sheet term, financial condition, level of income or results of operations thereof.

“ Redeemable Capital Interests ” in any Person means any equity security of such Person that by its terms (or by terms of any security into which it is convertible or for which it is exchangeable), or otherwise (including the passage of time or the happening of an event), is required to be redeemed, is redeemable at the option of the holder thereof in whole or in part (including by operation of a sinking fund), or is convertible or exchangeable for Debt of such Person at the option of the holder thereof, in whole or in part, at any time prior to the Stated Maturity of the Notes; provided that only the portion of such equity security which is required to be redeemed, is so convertible or exchangeable or is so
redeemable at the option of the holder thereof before such date will be deemed to be Redeemable Capital Interests. Notwithstanding the preceding sentence, any equity security that would constitute Redeemable Capital Interests solely because the holders of the equity security have the right to require the Parent to repurchase such equity security upon the occurrence of a Change of Control or an Asset Sale will not constitute Redeemable Capital Interests if the terms of such equity security provide that the Parent may not repurchase or redeem any such equity security pursuant to such provisions unless such repurchase or redemption complies with Section 4.05. The amount of Redeemable Capital Interests deemed to be outstanding at any time for purposes of this Indenture will be the maximum amount that the Parent and its Restricted Subsidiaries may become obligated to pay upon the maturity of, or pursuant to any mandatory redemption provisions of, such Redeemable Capital Interests or portion thereof, exclusive of accrued dividends.
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“ Refinancing Debt ” means Debt that Refinances any Debt incurred by the Parent or any Restricted Subsidiary pursuant to the terms of this Indenture, whether involving the same or any other lender or creditor or group of lenders or creditors, but only to the extent that

(1)              if the Debt being refinanced is subordinated in right of payment to the Notes, the Refinancing Debt is subordinated to the Notes to at least the same extent as the Debt being Refinanced if such Debt was subordinated to the Notes,

(2)              the Refinancing Debt is scheduled to mature either (a) no earlier than the Debt being Refinanced or (b) at least 91 days after the maturity date of the Notes,

(3)              the Refinancing Debt has an Average Life at the time such Refinancing Debt is incurred that is equal to or greater than the Average Life of the Debt being Refinanced,

(4)        such Refinancing Debt is in 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 fees and expenses, including any premium and defeasance costs) with respect to the Debt being Refinanced, and

(5)              Refinancing Debt shall not include Debt of a Non-Guarantor Subsidiary that refinances Debt of the Parent, the Issuer or a Subsidiary Guarantor.

“ Restricted Payment ” is defined to mean any of the following:

(1) any dividend or other distribution declared and paid on the Capital Stock in the Parent or on the Capital Stock in any Restricted Subsidiary of the Parent that are held by, or declared and paid to, any Person other than the Parent or a Restricted Subsidiary of the Parent (other than (i) dividends, distributions or payments made solely in Qualified Capital Interests in the Parent and (ii) dividends or distributions payable to the Parent or a Restricted Subsidiary of the Parent or to other holders of Capital Stock of a Restricted Subsidiary on a pro rata basis);

(2) any payment (including, without limitation, in connection with a merger, consolidation or amalgamation) made by the Parent or any of its Restricted Subsidiaries to purchase, redeem, acquire or retire any Capital Stock in the Parent (including the conversion into, or exchange for, Debt, of any Capital Stock) other than any such Capital Stock owned by the Parent or any Restricted Subsidiary (other than a payment made solely in Qualified Capital Interests in the Parent);

(3) any payment made by the Parent or any of its Restricted Subsidiaries (other than a payment made solely in Qualified Capital Interests in the Parent) to redeem, repurchase, defease (including an in substance or legal defeasance) or otherwise acquire or retire for value (including pursuant to mandatory repurchase covenants), prior to any scheduled maturity, scheduled sinking fund or mandatory redemption payment, Debt of the Parent or any Subsidiary Guarantor that is subordinate in right of payment to the Notes or Guarantees (excluding any Debt owed to the Parent or any Restricted Subsidiary); except payments of principal and interest in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, within one year of the due date thereof;
 

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(4) any Investment by the Parent or a Restricted Subsidiary in any Person, other than a Permitted Investment; and

(5) any designation of a Restricted Subsidiary as an Unrestricted Subsidiary.

“ Restricted Subsidiary ” means any Subsidiary of the Parent (including the Issuer) other than an Unrestricted Subsidiary.

“ Significant Subsidiary ” means any Restricted Subsidiary of the Parent that constitutes a “significant subsidiary” within the meaning set forth in Rule 1-02 of Regulation S-X promulgated by the Commission.
 
“ Standard Securitization Undertakings ” means representations, warranties, covenants and indemnities entered into by the Parent or any Restricted Subsidiary which are reasonably customary in an accounts receivable securitization transaction as determined in good faith by the Parent, including guarantees by the Parent or any Restricted Subsidiary of any of the foregoing obligations of the Parent or a Restricted Subsidiary.

“ Subsidiary ” of any Person means any corporation, association or other business entity of which more than 50%, by number of votes, of the Voting Stock is at the time directly or indirectly owned by such Person.  Unless otherwise specified herein, each reference to a Subsidiary will refer to a Subsidiary of the Parent, including the Issuer.
 
“ Subsidiary Guarantor ” means each Restricted Subsidiary of the Parent that executes a supplemental indenture, including in the form set forth in Exhibit C hereto providing its Guarantee pursuant to the terms of this Indenture after the Issue Date.

“ Sumitomo Credit Agreement ” means the credit agreement, dated as of August 25, 2015 (as amended, supplemented or otherwise modified from time to time), among the Issuer, the Parent and the agents and lenders named therein, providing for a term loan facility, which shall provide for borrowings by the Parent, together with all related notes, letters of credit, guarantees, and any other related agreements and instruments executed and delivered in connection therewith, in each case as amended, modified, supplemented, restated, refinanced, refunded or replaced in whole or in part from time to time including by or pursuant to any agreement or instrument that exchanges, extends, refinances, renews, replaces, substitutes or otherwise restructures the maturity of any indebtedness thereunder, or increases the amount of available borrowings thereunder, or adds Subsidiaries of the Parent as additional borrowers or guarantors thereunder, in each case with respect to such agreement or any successor or replacement agreement and whether by the same or any other agent, lender, group of lenders, purchasers, institutional investors or debt holders.

“ Unrestricted Subsidiary ” means:

(1)              any direct or indirect Subsidiary of the Parent (other than the Issuer) which at the time of determination is an Unrestricted Subsidiary (as designated by the Board of Directors of the Parent, as provided below) and

(2)              any Subsidiary of an Unrestricted Subsidiary.

The Board of Directors of the Parent may designate any direct or indirect Subsidiary of the Parent (including any existing Subsidiary and any newly-acquired or newly-formed direct or indirect Subsidiary) (other than the Issuer) to be an Unrestricted Subsidiary unless such Subsidiary or any of its Subsidiaries owns any Capital Stock or Debt of, or owns or holds any Lien on, any property of, the Parent or any  Subsidiary of the Parent (other than any Subsidiary of the Subsidiary to be so designated); provided that
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(a)              any Unrestricted Subsidiary must be an entity of which the Capital Stock entitled to cast at least a majority of the votes that may be cast by all Capital Stock having ordinary voting power for the election of directors or other governing body are owned, directly or indirectly, by the Parent,

(b)              such designation complies with Section 4.05 and

(c)              each of

(1)              the Subsidiary to be so designated and

(2)              its Subsidiaries

has not at the time of designation, and does not thereafter, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable with respect to any Debt pursuant to which the lender has recourse to any of the assets of the Parent or any Restricted Subsidiary.

The Board of Directors of the Parent may designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that immediately after giving effect to such designation no Default or Event of Default shall have occurred and be continuing and either:

(1)              the Parent could incur at least $1.00 of additional Debt pursuant to the Consolidated Fixed Charge Coverage Ratio test described under Section 4.06 or

(2)              the Consolidated Fixed Charge Coverage Ratio for the Parent and the Restricted Subsidiaries on a consolidated basis would be greater than or equal to such ratio for the Parent and the Restricted Subsidiaries on a consolidated basis immediately prior to such designation, in each case on a pro forma basis taking into account such designation.

Any such designation by the Board of Directors of the Parent shall be notified by the Issuer to the Trustee by promptly filing with the Trustee a copy of a resolution of the board of directors of the Issuer giving effect to such designation and an Officers’ Certificate certifying that such designation complied with the foregoing provisions.

1.02.              Section 1.02 “Other Definitions” is hereby amended by adding to the table in its appropriate alphabetical order the term “Successor Guarantor,” which is defined in Section 5.01(c).

1.03.              Section 1.04 “Incorporation by Reference of Trust Indenture Act,” Section 1.05 “Acts of Holders,” Section 2.01 “Form and Dating; Terms,” Section 4.02 “Maintenance of Office or Agency,” Section 7.07 “Compensation and Indemnity,” Section 9.06 “Trustee to Sign Amendments, etc.,” Section 10.02 “Application of Trust Money” and Section 2.3 “Definitive Notes” of Appendix A and Section 9 “Defaults and Remedies” of the Notes are hereby amended by inserting “, the Parent” before each reference to “and the Subsidiary Guarantors”, “or the Subsidiary Guarantors”, “or any Subsidiary Guarantor”, “the Subsidiary Guarantors”, “each Subsidiary Guarantor” and “and any Subsidiary Guarantor” therein.
 
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1.04         The following sections in Article 4 “Covenants” are hereby amended and restated in their entirety as follows:

ARTICLE 4

COVENANTS
Section 4.03                 Provision of Financial Information .

Whether or not required by the Commission, so long as any Notes are outstanding, the Parent will furnish to the Holders, or file electronically with the Commission through the Commission’s Electronic Data Gathering, Analysis and Retrieval System (or any successor system), within the time periods specified in the Commission’s rules and regulations:

(1) all quarterly and annual financial information that would be required to be contained in a filing by the Parent with the Commission on Forms 10-Q and 10-K if the Parent were required to file such Forms, including a “Management’s discussion and analysis of financial condition and results of operations” and, with respect to the annual information only, a report on the annual financial statements by the Parent’s certified independent accountants; and

(2) all current reports that would be required to be filed by the Parent with the Commission on Form 8-K if the Parent were required to file such reports.

In addition, whether or not required by the Commission, the Parent will file a copy of all of the information and reports referred to in clauses (1) and (2) above with the Commission for public availability within the time periods specified in the Commission’s rules and regulations (unless the Commission will not accept such a filing) and make such information available to prospective investors. In addition, the Parent has agreed that, for so long as any Notes remain outstanding, it will furnish to the Holders of such Notes and to prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.

Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates). The Trustee shall have no responsibility or liability for the filing, content or timeliness of any such report, information or document other than the report of the Trustee specifically required hereunder.

Section 4.04                  Compliance Certificate .

(a)              The Issuer will deliver to the Trustee, within 120 days after the end of each fiscal year ending after the Issue Date, a certificate from the principal executive officer, principal financial officer or principal accounting officer stating that a review of the activities of the Parent and its Restricted Subsidiaries during the preceding fiscal year has been made under the supervision of the signing Officer with a view to determining whether the Issuer, the Parent and each Subsidiary Guarantor have kept, observed, performed and fulfilled their obligations under this Indenture, and further stating, as to such Officer signing such certificate, that to the best of his or her knowledge, the Issuer, the Parent and each Subsidiary Guarantor have kept, observed, performed and fulfilled each and every condition and covenant contained in this Indenture and is not in default in the performance or observance of any of the terms, provisions, covenants and conditions of this Indenture (or, if a Default shall have occurred, describing all such Defaults of which he or she may have knowledge and what action the Issuer, the Parent and each Subsidiary Guarantor are taking or propose to take with respect thereto).
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(b)              When any Default has occurred and is continuing under this Indenture, the Issuer will promptly send to the Trustee an Officers’ Certificate specifying such event, its status and what action the Issuer is taking or proposes to take with respect thereof.

Section 4.05                  Limitation on Restricted Payments .

(a)              The Parent will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, make any Restricted Payment unless, at the time of and after giving effect to the proposed Restricted Payment:

(i)              no Default shall have occurred and be continuing or will occur as a consequence thereof;

(ii)              after giving effect to such Restricted Payment on a pro forma basis, the Parent would be permitted to incur at least $1.00 of Coverage Debt under Section 4.06(a); and

(iii)              after giving effect to such Restricted Payment on a pro forma basis, the aggregate amount of all Restricted Payments made after the Issue Date (excluding (x) Restricted Payments permitted by clauses (2) through (8) of Section 4.05(b) and (y) Restricted Payments permitted by clause (9) of Section 4.05(b) to the extent that the amount available for Restricted Payments under this clause (iii) would be reduced to less than zero as a result of payments made under such clause (9)), shall not exceed the sum (without duplication) of

(A)              50% of the Consolidated Net Income (or, if Consolidated Net Income shall be a deficit, minus 100% of such deficit) of the Parent accrued on a cumulative basis during the period (taken as one accounting period) from the beginning of the fiscal quarter during which the Issue Date occurs and ending on the last day of the fiscal quarter immediately preceding the date of such proposed Restricted Payment, plus

(B)              100% of the aggregate net proceeds (including the fair market value of property other than cash as determined by the Parent in good faith) received by the Parent subsequent to the initial issuance of the Notes either (i) as a contribution to its common equity capital or (ii) from the issuance and sale (other than to a Subsidiary) of its Qualified Capital Interests, including Qualified Capital Interests issued upon the conversion of Debt, Redeemable Capital Interests or preferred stock of the Parent, and from the exercise of options, warrants or other rights to purchase such Qualified Capital Interests (other than, in each case, Capital Stock or Debt sold to a Subsidiary of the Parent and other than Excluded Contributions), plus

(C)              to the extent that any Investment (other than Permitted Investments or Investments in Unrestricted Subsidiaries) that was made on or after the Issue Date is sold for cash or otherwise disposed of, liquidated, redeemed, repurchased or repaid for cash or other assets, or to the extent that the Parent otherwise realizes any proceeds on the sale of such Investment or proceeds representing the return of capital on such Investment, the lesser of (i) the initial amount of such Investment, or (ii) to the extent not otherwise included in the calculation of Consolidated Net Income of the Parent for such period, the net cash return of capital or net fair market value of return of capital as determined by the Parent in good faith with respect to such Investment, less the cost of any such disposition or liquidation, plus
 
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(D)              to the extent that any Unrestricted Subsidiary of the Parent designated as such on or after the Issue Date is redesignated as a Restricted Subsidiary, the lesser of (i) the fair market value of the Parent’s Investment in such Subsidiary as of the date of such redesignation as determined by the Parent in good faith or (ii) such fair market value as of the date on which such Subsidiary was originally designated as an Unrestricted Subsidiary, plus

(E)              $150.0 million.

(b)              The provisions of Section 4.05(a) will not prohibit:

(1)              the payment of any dividend on Capital Stock in the Parent or a Restricted Subsidiary within 60 days after declaration thereof if at the declaration date such payment was permitted by the provisions of Section 4.05;

(2)              the purchase, repurchase, redemption, defeasance or other acquisition or retirement of any Qualified Capital Interests of the Parent by conversion into, or by or in exchange for, Qualified Capital Interests, or out of net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Parent) of other Qualified Capital Interests of the Parent;

(3)              the redemption, defeasance, repurchase or acquisition or retirement for value of any Debt of the Parent or a Subsidiary Guarantor that is subordinate in right of payment to the Notes or the applicable Guarantee out of the net cash proceeds of a substantially concurrent issue and sale (other than to a Subsidiary of the Parent) of (x) new subordinated Debt of the Parent or such Subsidiary Guarantor, as the case may be, incurred in accordance with this Indenture or (y) of Qualified Capital Interests of the Parent;

(4)              the purchase, redemption, retirement or other acquisition for value of Capital Stock of the Parent held by employees or former employees of the Parent or any Restricted Subsidiary (or their estates or beneficiaries under their estates) upon death, disability, retirement or termination of employment or alteration of employment status or pursuant to the terms of any agreement under which such Capital Stock was issued; provided, however , that the aggregate cash consideration paid for such purchase, redemption, retirement or other acquisition of such Capital Stock does not exceed $5.0 million in any calendar year; provided further, however , that any unused amounts in any calendar year may be carried forward to one or more future periods subject to a maximum aggregate amount of repurchases made pursuant to this clause (iv) not to exceed $10.0 million in any calendar year; provided, however , that such amount in any calendar year may be increased by an amount not to exceed (A) the cash proceeds received by the Parent or any of its Restricted Subsidiaries from the sale of Qualified Capital Interests of the Parent to employees of the Parent and its Restricted Subsidiaries that occurs after the Issue Date; provided, however , that the amount of such cash proceeds utilized for any such repurchase, retirement, other acquisition or dividend will not increase the amount available for Restricted Payments under clause (iii) of Section 4.05(a); plus (B) the cash proceeds of key man life insurance policies received by the Parent and its Restricted Subsidiaries after the Issue Date ( provided, however , that the Parent may elect to apply all or any portion of the aggregate increase contemplated by the proviso of this clause (4) in any calendar year);

(5)              repurchase of Capital Stock deemed to occur upon the exercise of stock options, warrants or other convertible or exchangeable securities;
 

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

(7)              the declaration and payment of dividends to holders of any class or series of Redeemable Capital Interests of the Parent or any Restricted Subsidiary issued or incurred in compliance with Section 4.06;

(8)              upon the occurrence of a Change of Control or an Asset Sale, the defeasance, redemption, repurchase or other acquisition of any subordinated Debt pursuant to provisions substantially similar to those described under Section 4.10 and Section 4.11 at a purchase price not greater than 101% of the principal amount thereof (in the case of a Change of Control) or at a percentage of the principal amount thereof not higher than the principal amount applicable to the Notes (in the case of an Asset Sale), plus any accrued and unpaid interest thereon; provided, however , that prior to or contemporaneously with such defeasance, redemption, repurchase or other acquisition, the Issuer has made an Offer to Purchase with respect to the applicable Notes and has repurchased all Notes validly tendered for payment and not withdrawn in connection therewith;

(9)              to the extent no Default in any payment in respect of principal or interest under the Notes or Event of Default has occurred and is continuing or will occur as a consequence thereof, the payment of regular cash quarterly dividends on the Parent’s common stock; provided, however , that in no event shall the amount of dividends paid in any calendar year under this clause (9) exceed $200.0 million;

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

(11)          to the extent no Default in any payment in respect of principal or interest under the Notes or an Event of Default has occurred and is continuing or will occur as a consequence thereof, other Restricted Payments not in excess of $50.0 million in the aggregate;

(12)          to the extent no Default in any payment in respect of principal or interest under the Notes or an Event of Default has occurred and is continuing or will occur as a consequence thereof, any Restricted Payment so long as on the date of such Restricted Payment, after giving pro forma effect thereto and to any related transactions as if the same had occurred at the beginning of the Parent’s most recent four consecutive fiscal quarters for which internal financial statements of the Parent are available, the Consolidated Debt Ratio would not exceed 2.50 to 1.00; and

(13)           any Restricted Payment made in connection with the Transactions.

(c)             If any Person in which an Investment is made, which Investment constitutes a Restricted Payment when made, thereafter becomes a Restricted Subsidiary in accordance with this Indenture, all such Investments previously made in such Person shall no longer be counted as Restricted Payments for purposes of calculating the aggregate amount of Restricted Payments pursuant to clause (iii) of Section 4.05(a), in each case to the extent such Investments would otherwise be so counted.

(d)              For purposes of this Section 4.05, if a particular Restricted Payment involves a non-cash payment, including a distribution of assets, then such Restricted Payment shall be deemed to be an amount equal to the cash portion of such Restricted Payment, if any, plus an amount equal to the fair market value of the non-cash portion of such Restricted Payment as determined by the Parent in good faith.
 

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Section 4.06                  Limitation on Debt .

(a)              The Parent will not, and will not permit any of its Restricted Subsidiaries to incur any Debt (including Acquired Debt); provided , however , that the Parent, the Issuer and any Restricted Subsidiary may incur Debt (including Acquired Debt) if, immediately after giving effect to the incurrence of such Debt and the receipt and application of the proceeds therefrom:

(1)              the Consolidated Fixed Charge Coverage Ratio of the Parent and its Restricted Subsidiaries would be greater than 2.00 to 1.00; and

(2)              no Default shall have occurred and be continuing at the time or as a consequence of the incurrence of such Debt (any Debt incurred pursuant to this provision being herein referred to as “ Coverage Debt ”); provided, however , that the amount of Debt (other than Acquired Debt) that may be incurred or issued pursuant to the foregoing by Non-Guarantor Subsidiaries shall not exceed $100.0 million at any one time outstanding.

(b)              Notwithstanding Section 4.06(a), the Parent and its Restricted Subsidiaries may incur Permitted Debt.

(c)              For purposes of determining any particular amount of Debt under this Section 4.06:

(1)              Debt outstanding under the Credit Agreement and the Sumitomo Credit Agreement on the Issue Date will at all times be treated as incurred pursuant to clause (1) of the definition of Permitted Debt and shall not be permitted to be reclassified and

(2)              guarantees or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount will not be included.

(d)              Except as provided above, for purposes of determining compliance with this Section 4.06, in the event that an item of Debt meets the criteria of more than one of the types of Debt described above, including any Coverage Debt and any category of Permitted Debt, the Parent, in its sole discretion, shall classify, and from time to time may reclassify, all or any portion of such item of Debt.

(e)              For purposes of determining compliance of any non-U.S. dollar- denominated Debt with this Section 4.06, the amount outstanding under U.S. dollar-equivalent principal amount of Debt denominated in a foreign currency shall at all times be calculated based on the relevant currency exchange rate in effect on the date such Debt was incurred, in the case of any term Debt, or first committed, in the cases of any revolving credit Debt; provided, however , that if such Debt is incurred to Refinance other Debt denominated in the same or different currency, and such Refinancing would cause the applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such Refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such Refinancing Debt does not exceed the principal amount of such indebtedness being Refinanced.

(f)              The accrual of interest, the accretion or amortization of original issue discount and the payment of interest on Debt in the form of additional Debt or payment of dividends on Capital Stock in the forms of additional shares of Capital Stock with the same terms will not be deemed to be an incurrence of Debt or issuance of Capital Stock for purposes of this Section 4.06.
 

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Section 4.07                            Limitation on Liens .

(a)              The Parent will not, nor will the Parent permit any Restricted Subsidiary to, issue, assume or guarantee any Debt secured by a Lien upon any Principal Property or upon any shares of stock of any Restricted Subsidiary without effectively providing that the Notes and the Guarantees, together with, if the Parent so determines, any other indebtedness or obligation then existing or thereafter created, ranking equally in right of payment with the Notes or the Guarantees, shall be secured equally and ratably with, or, at the Parent’s option, prior to, such Debt so long as such Debt shall be so secured, except that this restriction will not apply to:

(1)              Liens existing on the Issue Date;

(2)              Liens affecting property of a Person existing at the time it becomes a Restricted Subsidiary or at the time it is merged into or consolidated with the Parent or a Restricted Subsidiary;

(3)              Liens:

(i)              on property existing at the time of acquisition thereof,

(ii)              to secure payment of all or part of the purchase price thereof,

(iii)              to secure Debt incurred prior to, at the time of or within 12 months after such acquisition for the purpose of financing all or part of the purchase price thereof, or

(iv)              assumed or incurred in connection with the acquisition of property;

(4)              Liens on property to secure all or part of the cost of repairing, altering, constructing, improving, exploring, drilling or developing such property, or to secure Debt incurred to provide funds for such purpose;
 
(5)              Liens in connection with non-recourse Debt;

(6)              Liens on current assets or other personal property, other than shares of stock of Subsidiaries, to secure loans maturing not more than one year from the date of the creation thereof or to secure any renewal thereof for not more than one year at any one time;

(7)              Liens which secure indebtedness owing by a Restricted Subsidiary to the Parent or another Restricted Subsidiary of the Parent;

(8)              Liens on property of any Restricted Subsidiary principally engaged in a financing or leasing business; and
 
(9)              any extension, renewal or replacement, or successive extensions, renewals or replacements, in whole or in part, of any Lien referred to in the foregoing or of any Debt secured thereby; provided that the principal amount of Debt secured thereby shall not, with respect to Liens referred to in clauses (1) through (4) above, exceed the principal amount of Debt so secured at the time of such extension, renewal or replacement, and that such extension, renewal or replacement Lien shall be limited to all or part of substantially the same property which secured the Lien extended, renewed or replaced, plus improvements on such property.
 

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(b)              Notwithstanding 4.07(a), the Parent and any one or more of its Restricted Subsidiaries may, without securing the Notes and the Guarantees, issue, assume or guarantee Debt secured by Liens which would not be permitted by Section 4.07(a) in an aggregate amount which, together with:

(1) the aggregate principal amount of all of the Parent’s other Debt and Debt of its Restricted Subsidiaries secured by a Lien upon any Principal Property or upon any shares of stock of any Restricted Subsidiary that would not be permitted to be secured by Liens under Section 4.07(a); and

(2) the Attributable Debt in respect of Sale and Lease-Back Transactions existing at such time (other than Sale and Lease-Back Transactions in which the property involved would have been permitted to be secured under Section 4.07(a) or the proceeds of which have been applied in accordance with Section 4.08(a)(2) to the retirement of long-term indebtedness);

does not at the time exceed 10% of Consolidated Net Tangible Assets.

 (c)              For purposes of this Section 4.07 and Section 4.08, the sale or other transfer of any interest in property of the character commonly referred to as a “production payment,” is not considered Debt secured by a Lien.

Section 4.08                  Limitation on Sale and Lease-Back Transactions .(a)     The Parent will not, nor will the Parent permit any Restricted Subsidiary to, enter into any arrangement with any Person providing for the leasing by the Parent or any Restricted Subsidiary of any Principal Property, except for (x) temporary leases for terms of not more than three years, (y) leasing arrangements between the Parent and a Subsidiary or (z) leasing arrangements between Subsidiaries, title to which property has been or is to be sold or transferred by the Parent or such Restricted Subsidiary to such Person (such transaction, a “ Sale and Lease-Back Transaction ”), unless the proceeds of any such sale are at least equal to the fair value, as determined by the Board of Directors of the Parent, of such property and either:
 
(1) the Parent or such Restricted Subsidiary would be permitted under Section 4.07(a) to secure Debt by a Lien on the Principal Property to be leased in an amount at least equal to the Attributable Debt in respect of such Sale and Lease-Back Transaction without equally and ratably securing the Notes pursuant to Section 4.07; or

(2) the Parent applies an amount equal to the fair value of the property so leased to the retirement, within 90 days of the effective date of any such Sale and Lease-Back Transaction, of the Issuer’s or the Parent’s long-term indebtedness which ranks senior or equal to the Notes or the related Guarantee (other than indebtedness held by the Parent or any of its Subsidiaries).

For the avoidance of doubt, Sale and Lease-Back Transactions do not include arrangements with governmental bodies entered into for the purpose of financing the purchase price or the cost of constructing or improving the property subject thereto.
 

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(b)              Notwithstanding the provisions of Section 4.08(a), the Parent or any of its Restricted Subsidiaries may enter into any Sale and Lease-Back Transaction which would not be permitted under Section 4.08(a) if the amount of the Attributable Debt in respect of such Sale and Lease-Back Transaction, together with:

(1) all of the Parent’s Debt and Debt of its Restricted Subsidiaries secured by a Lien on Principal Property or shares of stock of any Restricted Subsidiary and not permitted under Section 4.07(a); and

(2) all other Attributable Debt in respect of Sale and Lease-Back Transactions existing at such time (other than Sale and Lease-Back Transactions in which the property involved would have been permitted to have a Lien in accordance with Section 4.07(a) or the proceeds of which have been applied in accordance with Section 4.08(a)(2) to the retirement of long-term indebtedness);

does not at the time exceed 10% of Consolidated Net Tangible Assets.

Section 4.09                 Future Guarantors .

(a)              After the Issue Date, the Parent will cause each Restricted Subsidiary of the Parent (other than the Issuer) that guarantees (i) the Credit Agreement or (ii) any Material Capital Markets Debt issued by the Parent, the Issuer or any Subsidiary Guarantor to, within 45 days of the incurrence of such guarantee, execute and deliver to the Trustee a supplemental indenture to this Indenture, which may be  in the form of Exhibit C hereto pursuant to which such Restricted Subsidiary will guarantee payment of the Notes on the same terms and conditions as those set forth in this Indenture.

(b)              Each Guarantee of a Subsidiary Guarantor shall be released in accordance with the provisions of Section 11.06.

(c)              Any Subsidiary Guarantor that makes a payment under its Guarantee will be entitled upon payment in full of all obligations that are guaranteed under this Indenture to a contribution from each other Subsidiary Guarantor in an amount equal to such other Subsidiary Guarantor’s pro rata portion of such payment based on the respective net assets of all the Subsidiary Guarantors at the time of such payment determined in accordance with GAAP.

Section 4.11                 Limitation on Asset Sales .

(a)              The Parent will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless :

(1)              the Parent (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the fair market value of the assets or Capital Stock issued or sold or otherwise disposed of as determined by the Parent in good faith; and

(2)              except in the case of a Permitted Asset Swap, at least 75% of the consideration received in the Asset Sale by the Parent or such Restricted Subsidiary is in the form of cash or Eligible  Cash Equivalents.
 

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For the purposes of this Section 4.11(a), the following will be deemed to be cash:

(i)              any liabilities, as shown on the most recent consolidated balance sheet of the Parent or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Guarantee) that are assumed by the transferee of any such assets pursuant to a customary assignment and assumption agreement that releases the Parent or such Restricted Subsidiary from further liability;

(ii)              any securities, notes or other obligations received by the Parent or any such Restricted Subsidiary from such transferee that are converted by the Parent or such Restricted Subsidiary into cash within 180 days of their receipt to the extent of the cash received in that conversion; and

(iii)              any Designated Non-cash Consideration received by the Parent or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value as determined by the Parent in good faith, taken together with all other Designated Non-cash Consideration received pursuant to this clause (iii) that is at that time outstanding, not to exceed $50.0 million 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)              Within 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Parent (or the applicable Restricted Subsidiary, as the case may be) may apply such Net Cash Proceeds at its option:

(A)              to permanently repay (a) Debt under the Credit Agreement and, if the obligation repaid is revolving credit Debt, to correspondingly reduce commitments with respect thereto and/or (b) other unsecured Debt ranking pari passu in right of payment with the Notes or the Parent’s Guarantee of the Notes (provided that if the Parent shall so reduce obligations under such other unsecured Debt, other than the Notes, the Parent will (x) equally and ratably reduce obligations under the Notes under any applicable optional redemption provisions or by open market purchases or (y) make an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders to purchase at a purchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest and additional interest, if any, the pro rata principal amount of Notes);

(B)              to acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes a Restricted Subsidiary of the Parent;

(C)              to make a capital expenditure in or that is used or useful in a Permitted Business or to make expenditures for maintenance, repair or improvement of existing properties and assets;

(D)              to acquire other assets (other than inventory) that are used or useful in a Permitted Business;

(E)              to repay or repurchase Debt secured by the assets of the Parent or any Restricted Subsidiaries; or

(F)              any combination of the foregoing.

(c)              Any Net Cash Proceeds from Asset Sales that are not applied, invested or subject to an offer to repurchase as provided in Section 4.11(b) will constitute “ Excess Proceeds .” When the aggregate amount of Excess Proceeds with respect to the Notes exceeds $50.0 million, the Issuer will, within 30 days, make an offer to purchase to all Holders of such Notes (an “ Asset Sale Offer ”), and to all holders of other Debt containing provisions similar to those set forth in this Indenture with respect to assets sales (including, without limitation, the 2025 Notes), to purchase the maximum aggregate principal amount of such Notes and such other Debt that may be purchased out of the Excess Proceeds. The offer price for the Notes in any Asset Sale Offer will be equal to 100% of the principal amount plus accrued and unpaid interest to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer in respect of such Notes, the Issuer may use those funds for any purpose not otherwise prohibited by this Indenture and they will no longer constitute Excess Proceeds. If the aggregate principal amount of Notes and other Debt tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Excess Proceeds will be allocated between such Notes and such other Debt based on the principal amount (or accreted value, if applicable) of such Notes and such other Debt tendered and the Trustee will select the Notes to be purchased on a pro rata basis among all such Notes tendered (subject to DTC procedures). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
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(d)              The Issuer will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of any Notes as a result of an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale Offer provisions of the Notes, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Asset Sale Offer provisions of the Notes by virtue of such conflict.

Section 4.12                 Effectiveness of Covenants .(a)           Following the first day (such date, the “ Termination Date ”):

(1)              the Notes have a rating of Investment Grade from both S&P and Moody’s and

(2)              no Default has occurred and is continuing under this Indenture, the Issuer, the Parent and its Restricted Subsidiaries shall no longer be subject to the provisions of Sections 4.05, 4.06, 4.09 and 4.11.

(b)              In the event that the Notes’ credit rating is downgraded from Investment Grade by any Rating Agency, the provisions of Sections 4.05, 4.06, 4.09 and 4.11 will not thereafter be reinstated.

(c)              Promptly following the Termination Date, the Issuer shall provide an Officers’ Certificate to the Trustee regarding such occurrence. The Trustee shall have no obligation to independently determine or verify if a Termination Date has occurred or notify the Holders of the Termination Date. The Trustee may provide a copy of such Officers’ Certificate to any Holder upon request.
 
1.05              Article 5 “Successors” is hereby amended and restated in its entirety as follows:
 
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ARTICLE 5
SUCCESSORS
 
Section 5.01                  Consolidation, Merger, Conveyance, Transfer or Lease .

(a)              The Issuer will not merge or consolidate with any other Person or sell or
convey all or substantially all of its assets to any Person, unless :

(1)              the successor Person (if other than the Issuer) (the “ Successor Issuer ”) shall be a corporation organized under the laws of the United States or any state thereof and shall expressly assume (a) the due and punctual payment of the principal of and premium, if any, and interest on all the Notes, according to their tenor, and the due and punctual performance and observance of all of the covenants and conditions under this Indenture to be performed or observed by the Issuer, by supplemental indenture satisfactory in form to the Trustee, executed and delivered to the Trustee by such Person and (b) all obligations of the Issuer under the Registration Rights Agreement, by a written instrument satisfactory in form to the parties thereto, executed and delivered to such parties by such Person;

(2)              the Successor Issuer shall not, immediately after such merger or consolidation, or such sale or conveyance, be in default in the performance of any such covenant or condition;

(3)              the Parent and each Subsidiary Guarantor (unless the Parent or such Subsidiary Guarantor is the other party to the transactions described above, in which case the preceding clause (1) shall apply) shall have by supplemental indenture confirmed that the applicable Guarantee shall apply to such Successor Issuer’s obligations under this Indenture and the Notes and shall have by written agreement confirmed that its obligations under the Registration Rights Agreement shall continue to be in effect; and

(4)              the Issuer shall have provided the Trustee with an Opinion of Counsel and Officers’ Certificate each stating that such merger or consolidation, or such sale or conveyance, and such supplemental indenture, if any, comply with this Indenture.

(b)              Subject to the limitations set forth in this Indenture, the Successor Issuer will succeed to, and be substituted for, the Issuer under this Indenture, the Notes and the Registration Rights Agreement.

(c)              the Parent will not merge or consolidate with any other Person or sell or convey all or substantially all of its assets to any Person, unless:

(1)              the successor Person (if other than the Parent) (the “ Successor Guarantor ”) shall be a corporation organized under the laws of the United States or any state thereof and shall expressly assume by supplemental indenture satisfactory in form to the Trustee, executed and delivered to the Trustee by such Person all the obligations of the Parent under the Guarantee, this Indenture and the Registration Rights Agreement;

(2)              the Successor Guarantor shall not, immediately after such merger or consolidation, or such sale or conveyance, be in default in the performance of any such covenant or condition; and
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(3)              the Successor Guarantor shall have provided the Trustee with an Opinion of Counsel and Officers’ Certificate each stating that such merger or consolidation, or such sale or conveyance, and such supplemental indenture, if any, comply with this Indenture.

(d)              The Parent will not permit any Subsidiary Guarantor to merge or consolidate with any other Person or sell or convey all or substantially all of its assets to any Person, unless:
 
(1)              (A)                the successor Person (if other than the Parent, the Issuer or such Subsidiary Guarantor) (the “ Successor Subsidiary Guarantor ”) shall expressly assume by supplemental indenture satisfactory in form to the Trustee, executed and delivered to the Trustee by such Person all the obligations of such Subsidiary Guarantor under the applicable Guarantee and this Indenture;

(B)              the Successor Subsidiary Guarantor shall not, immediately after such merger or consolidation, or such sale or conveyance, be in default in the performance of any such covenant or condition; and

(C)              the Successor Subsidiary Guarantor shall have provided the Trustee with an Opinion of Counsel and Officers’ Certificate confirming compliance with this Indenture; or

(2)              the merger, consolidation, sale or conveyance complies with Section 4.11.

(e)              Notwithstanding anything in the foregoing provisions of this Section 5.01 to the contrary, this Section 5.01 shall not apply to the transactions contemplated by the Separation Agreement or by the Merger Agreement.

Section 5.02                  Successor Entity Substituted .

Upon any merger, consolidation or sale or conveyance of all or substantially all of the assets of the Parent, any Subsidiary Guarantor or the Issuer, as the case may be, in accordance with Section 5.01, the Parent, such Subsidiary Guarantor or the Issuer, as the case may be, will be released from its obligations under this Indenture, the Notes, the Guarantees and the Registration Rights Agreement, as applicable, and the Successor Issuer, the Successor Guarantor or the Successor Subsidiary Guarantor, as the case may be, will succeed to, and be substituted for, and may exercise every right and power of, the Parent, such Subsidiary Guarantor or the Issuer, as the case may be, under this Indenture, the Notes, the Registration Rights Agreement and the Guarantees, as applicable.

1.06              Section 6.01 “Events of Default” is hereby amended and restated in its entirety as follows:

Section 6.01                  Events of Default .

Each of the following is an “ Event of Default ”:

(1)              default in the payment in respect of the principal of, or premium, if any, on any Note when due and payable (whether at Stated Maturity or upon repurchase, acceleration,  optional redemption or otherwise);
 

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(2)              default in the payment of any interest (including Additional Interest (as required by the Registration Rights Agreement)) upon any Note when it becomes due and payable, and continuance of such default for a period of 30 days;

(3)              default in the performance, or breach, of any covenant or agreement of the Parent or any Restricted Subsidiary in this Indenture (other than a covenant or agreement a default in which performance or which breach is specifically dealt with in clauses (1) or (2) above), and continuance of such default or breach for a period of 60 days after written notice thereof has been given to the Issuer by the Trustee or to the Issuer and the Trustee by the Holders of at least 25% in aggregate principal amount of the outstanding Notes ( provided that, and without limiting the foregoing in this clause (3), in the case of a default or breach of any covenant or agreement described under Section 4.03, no Event of Default shall occur (and any such default or breach shall be deemed to not have occurred for all purposes under this Indenture) with respect to any failure to furnish or file any information or report required thereunder if the Parent files or furnishes such information or report within 120 days after the Parent was required (or would have been required) to file the same pursuant to the Commission’s rules and regulations);

(4)              the applicable Guarantee ceases to be in full force and effect (except as contemplated by this Indenture) or is declared null and void in a judicial proceeding or the Parent or a Subsidiary Guarantor denies in writing or disaffirms in writing its obligations under this Indenture or Guarantee, other than by reason of the termination of this Indenture or the release of such Guarantee in accordance with the terms of this Indenture;

(5)              the Parent or a Significant Subsidiary shall (i) voluntarily commence any proceeding or file any petition seeking relief under Title 11 of the United States Code or any other federal or state bankruptcy, insolvency or similar law, (ii) consent to the institution of, or fail to controvert in a timely and appropriate manner, any such proceeding or the filing of any such petition, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator or similar official for the Parent or a Significant Subsidiary or for a substantial part of its property, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors, (vi) admit in writing its inability or fail generally to pay its debts as they become due or (vii) take corporate action for the purpose of effecting any of the foregoing; or

(6)              the entry of an order or decree by a court having competent jurisdiction in the premises for (i) relief in respect of the Parent or a Significant Subsidiary or a substantial part of the property of the Parent or a Significant Subsidiary, under Title 11 of the United States Code or any other federal or state bankruptcy, insolvency or similar law, (ii) the appointment of a receiver, trustee, custodian, sequestrator or similar official for the Parent or a Significant Subsidiary or for a substantial part of the property of the Parent or a Significant Subsidiary or (iii) the winding-up or liquidation of the Parent or a Significant Subsidiary; and such order or decree shall continue unstayed and in effect for 60 days.

1.07              Section 6.02 “Acceleration” is hereby amended and restated in its entirety as follows:

Section 6.02                  Acceleration .
 
(a)        If an Event of Default (other than an Event of Default described in clauses (5) and (6) of Section 6.01) with respect to the Parent or the Issuer occurs and is continuing, then and in every such case, unless the principal of all the Notes have already become due and payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount of the then outstanding Notes may declare the principal of, premium, if any, and accrued and unpaid interest on the Notes to be due and payable immediately by a notice in writing to the Issuer (and to the Trustee if given by such Holders).  Upon such declaration, such principal, premium, if any, and accrued and unpaid interest, if any, will be due and payable.
 

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(b)              If, at any time after the principal amount of the Notes shall have been so declared to be immediately due and payable, and before any judgment or decree for the payment of the moneys due on account of such declaration shall have been obtained or entered, all defaults under this Indenture, other than the nonpayment of principal of or premium, if any, or accrued interest on the Notes which shall have become due by acceleration shall have been remedied—then and in every such case the Holders of a majority in aggregate principal amount of the Notes then outstanding, by written notice to the Issuer and to the Trustee, may waive all defaults and rescind and annul such declaration and its consequences; but no such waiver or rescission and annulment shall extend or shall, affect any subsequent default, or shall impair any right consequent thereon.

(c)              The Trustee may withhold from Holders notice of any Default (except any Default in the payment of principal of, premium, if any, or interest on the Notes) if the Trustee determines that withholding notice is in the interests of such Holders to do so.

(d)              In case an Event of Default described in clauses (5) or (6) of Section 6.01 with respect to the Parent or the Issuer occurs, the principal of, premium, if any, and accrued and unpaid interest, if any, on all the then outstanding Notes will ipso facto become immediately due and payable without any declaration or other act on the part of the Trustee or any Holders.


1.08              Section 6.09 “Restoration of Rights and Remedies” is hereby amended as follows:

(i)              Before the reference to “the Subsidiary Guarantors”, “the Parent,” is inserted.

1.09              Section 6.12 “Trustee May File Proofs of Claim” is hereby amended as follows:

(i)              Before the reference to “the Subsidiary Guarantors”, “the Parent and” is added.

1.10              Section 6.13 “Priorities” is hereby amended as follows:

(i)              Before the reference to “a Subsidiary Guarantor” in Section 6.13(3), “the Parent or” is added.

1.11              Section 7.02 “Rights of Trustee” is hereby amended as follows:

(i)              After each reference to “the Issuer “ in Section 7.02(e), “, the Parent”
is added.

1.12              Section 8.02 “Defeasance and Discharge” is hereby amended and restated in its entirety as follows:

Section 8.02                 Defeasance and Discharge .
 
(a)        Upon the Issuer’s exercise under Section 8.01 of the option applicable to this Section 8.02, the Issuer, the Parent and the Subsidiary Guarantors shall, subject to the satisfaction of the conditions set forth in Section 8.04, be deemed to have been discharged from their obligations with respect to the Indenture, all outstanding Notes and Guarantees on the date the conditions set forth below are satisfied (“ Defeasance ”).  For this purpose, Defeasance means that the Issuer shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes, which shall thereafter be deemed to be “outstanding” only for the purposes of Section 8.05 and the other Sections of this Indenture referred to in clauses (1) through (5) below, and to have satisfied all of its other obligations under such Notes and this Indenture, including that of the Parent and the Subsidiary Guarantors (and the Trustee, on demand of and at the expense of the Issuer, shall execute proper instruments acknowledging the same), except for the following provisions which shall survive until otherwise terminated or discharged hereunder:
 

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(1)              the rights of Holders to receive payments in respect of the principal of and premium, if any, and interest on the Notes when such payments are due;

(2)              the Issuer’s obligations with respect to the Notes concerning issuing temporary Notes, registration of Notes, mutilated, destroyed, lost or stolen Notes and the maintenance of an office or agency for payment and money for security payments held in trust;

(3)              the rights, powers, trusts, duties and immunities of the Trustee;

(4)              the Issuer’s right of optional redemption pursuant to Section 3.07; and

(5)              this Section 8.02.

(b)              Following the Issuer’s exercise of its Defeasance option, payment of the Notes may not be accelerated because of an Event of Default.

(c)              Subject to compliance with this Article 8, the Issuer may exercise its option under this Section 8.02 notwithstanding the prior exercise of its option under Section 8.03.

1.13              Section 8.03 “Covenant Defeasance” is hereby amended and restated in its entirety as follows:

Section 8.03                 Covenant Defeasance .
 
   Upon the Issuer’s exercise under Section 8.01 of the option applicable to this Section 8.03, the Issuer, the Parent and the Subsidiary Guarantors shall, subject to the satisfaction of the conditions set forth in Section 8.04, be released from their obligations under the covenants contained in Sections 3.09, 4.03, 4.05, 4.06, 4.07, 4.08, 4.09, 4.10 and 4.11 with respect to the outstanding Notes, and the Subsidiary Guarantors shall be deemed to have been discharged from their obligations with respect to all Guarantees (other than the Guarantee of the Parent), on and after the date the conditions set forth in Section 8.04 are satisfied (“ Covenant Defeasance ”), and the Notes shall thereafter be deemed not “outstanding” for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed “outstanding” for all other purposes hereunder (it being understood that such Notes shall not be deemed outstanding for accounting purposes).  For this purpose, Covenant Defeasance  means that, with respect to this Indenture and the outstanding Notes, the Issuer may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event of Default under Section 6.01, but, except as specified above, the remainder of this Indenture, the Notes and the Guarantee of the Parent shall be unaffected thereby.  In addition, upon the Issuer’s exercise under Section 8.01 of the option applicable to this Section 8.03, subject to the satisfaction of the conditions set forth in Section 8.04, an Event of Default specified in Section 6.01(3) (only with respect to covenants that are released as a result of such Covenant Defeasance) and 6.01(4), (5) (solely with respect to the Parent or any Significant Subsidiary) and (6) (solely with respect to the Parent or any Significant Subsidiary) will no longer constitute an Event of Default.

1.14              Section 8.04 “Conditions to Legal or Covenant Defeasance” is hereby amended as follows:
 

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(i)              Before each reference to “the Issuer” in Section 8.04(a)(5), “the Parent,” is added.

1.15              Section 8.07 “Reinstatement” is hereby amended as follows:

(i)              After the reference to “the Issuer’s”, “, the Parent’s” is added.

1.16              Section 9.01 “Without Consent of Holders” is hereby amended and restated in its entirety as follows:

Section 9.01                Without Consent of Holders .
 
(a)              Notwithstanding Section 9.02, without the consent of any Holder, the Issuer, the Parent and the Trustee may, at any time and from time to time, amend or supplement this Indenture:

(1)              to evidence the succession of another Person to the Parent, the Issuer or a Subsidiary Guarantor and the assumption by any such successor of the covenants of the Parent, the Issuer or such Subsidiary Guarantor, as applicable, under this Indenture, the Notes and the Guarantees thereof;

(2)              to add to the covenants of the Parent, the Issuer and the Subsidiary Guarantors for the benefit of the applicable Holders, or to surrender any right or power herein conferred upon the Parent, the Issuer and the Subsidiary Guarantors;

(3)              to add additional Events of Default;

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

(5)              to evidence and provide for the acceptance of appointment under this Indenture by a successor Trustee; provided that the successor Trustee is otherwise qualified and eligible to act as such under the terms of this Indenture;

(6)              to provide for or confirm the issuance of Additional Notes in accordance with the terms of this Indenture;

(7)              to add a Subsidiary Guarantor in accordance with this Indenture or release (a) the Parent in accordance with Article V or (b) a Subsidiary Guarantor from its Guarantee when permitted by the terms of this Indenture;

(8)              to cure any ambiguity, defect, omission, mistake or inconsistency;

(9)              to make any other provisions with respect to matters or questions arising under
this Indenture; provided , however , that such actions pursuant to this clause (9) shall not adversely affect the interests of the Holders in any material respect, as determined in good faith by the Board of Directors of the Parent;

(10)              to provide for the issuance of Exchange Notes, which shall be treated, together with any outstanding Notes, as a single class of securities;

(11)              to conform the text of this Indenture or the Notes to any provision of the “Description of notes” section of the Offering Memorandum to the extent that the Trustee has received an Officers’ Certificate stating that such text constitutes an unintended conflict with the description of the corresponding provision in the “Description of notes” section of the Offering Memorandum; or
 

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(12)              to effect or maintain the qualification of this Indenture under the Trust Indenture Act.

Upon the request of the Issuer subject to the terms hereof, and upon receipt by the Trustee of the documents described in Section 12.04, the Trustee shall join with the Issuer, the Parent and the Subsidiary Guarantors in the execution of any amended or supplemental indenture authorized or permitted by the terms of this Indenture and to make any further appropriate agreements and stipulations that may be therein contained, but the Trustee shall not be obligated to enter into such amended or supplemental indenture that affects its own rights, duties or immunities under this Indenture or otherwise.

1.17              Section 9.02        “With Consent of Holders” is hereby amended and restated in its entirety as follows:

Section 9.02                 With Consent of Holders .
 
(a)        Except as provided in Section 9.01 and this Section 9.02, with the consent of the Holders of not less than a majority in aggregate principal amount of the then outstanding Notes, the Parent, the Issuer and the Trustee may amend or supplement this Indenture for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture, or of the Notes or the related Guarantees, or of modifying in any manner the rights of the Holders under this Indenture, including the definitions herein.  Section 2.08 and Section 2.09 shall determine which Notes are considered to be “outstanding” for the purposes of this Section 9.02.

(b)              Without the consent of each affected Holder, an amendment, supplement or waiver under this Section 9.02 may not (with respect to any Notes held by a non-consenting Holder):

(1)              change the Stated Maturity of any Note or of any installment of interest on any Note, or reduce the amount payable in respect of the principal thereof or the rate of interest thereon or any premium payable thereon, or reduce the amount that would be due and payable on acceleration of the maturity thereof, or change the place of payment where, or the coin or currency in which, any Note or any premium or interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof, or change the date on which any Notes may be subject to redemption or reduce the redemption price therefor;

(2)              reduce the percentage in aggregate principal amount of the then outstanding Notes, the consent of whose Holders is required for any such amendment or supplement, or the consent of whose Holders is required for any waiver of compliance with covenants relating to the payment of principal of or premium, if any, or interest on the Notes or related defaults or Events of Default and their consequences (except with respect to a rescission of acceleration of the Notes by the Holders of a majority in aggregate principal amount of the Notes then outstanding, and a waiver of the Event of Default under Section 6.01(1) or 6.01(2) that resulted from such acceleration) provided for in this Indenture;

(3)              modify the obligations of the Issuer to make offers to purchase upon a Change of Control if such modification was done after the occurrence of the related Change of Control;

(4)              modify or change any provision of this Indenture affecting the ranking of the Notes in a manner adverse to the applicable Holders; or
 

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(5)              modify any of the provisions of this Section 9.02(b) or provisions relating to waiver of compliance with covenants relating to the payment of principal of or premium, if any, or interest on the Notes or related defaults or Events of Default and their consequences (except with respect to a rescission of acceleration of the Notes by the Holders of a majority in aggregate principal amount of the Notes then outstanding, and a waiver of the Event of Default under Section 6.01(1) or 6.01(2) that resulted from such acceleration), except to increase any such percentage required for such actions or to provide that such other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each outstanding Note issued thereunder that is affected thereby;

(c)              Upon the request of the Issuer, and upon the filing with the Trustee of evidence reasonably satisfactory to the Trustee of the consent of the Holders as aforesaid, and upon receipt by the Trustee of the documents described in Section 7.02 and Section 12.04, the Trustee shall, subject to the terms hereof, join with the Issuer , the Parent and the Subsidiary Guarantors in the execution of such amended or supplemental indenture unless such amended or supplemental indenture directly affects the Trustee’s own rights, duties or immunities under this Indenture, in which case the Trustee may, but shall not be obligated to, enter into such amended or supplemental indenture.

(d)              It shall not be necessary for the consent of the Holders under this Section 9.02 to approve the particular form of any proposed amendment, supplement or waiver.  It shall be sufficient if such consent approves the substance of such proposed amendment or supplement.  A consent to any amendment, supplement or waiver under this Indenture by any Holder given in connection with a tender of such Holder’s Notes will not be rendered invalid by such tender.

(e)              A consent to any amendment, supplement or waiver of this Indenture or the Notes or the Guarantee by any Holder given in connection with a tender of such Holder’s Notes will not be rendered invalid by such tender.

1.18              Section 10.01 “Satisfaction and Discharge” is hereby amended and restated in its entirety as follows:

Section 10.01              Satisfaction and Discharge .
 
(a)        This Indenture will be discharged, and will cease to be of further effect as to all Notes, when either:

(1)              all Notes theretofore authenticated and delivered have been delivered to the Trustee for cancellation; or

(2)(A) all such Notes not theretofore delivered to the Trustee for cancellation have become due and payable or will become due and payable within one year or are to be called for redemption within one year (a “ Discharge ”) under irrevocable arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Issuer, and the Issuer has irrevocably deposited or caused to be deposited with the Trustee funds in an amount sufficient to pay and discharge the entire indebtedness on the Notes, not theretofore delivered to the Trustee for cancellation, for principal of, premium, if any, and accrued interest to the Stated Maturity or date fixed for redemption;
 
(B)              the Issuer, the Parent or the applicable Subsidiary Guarantor has paid or caused to be paid all other sums then due and payable under this Indenture by the Issuer with respect to the Notes;

(C)              the deposit will not result in a breach or violation of, or constitute a default under, any instrument (other than this Indenture) to which the Issuer, the Parent or any Subsidiary Guarantor is a party or by which the Issuer, the Parent or the applicable Subsidiary Guarantor is bound;
 

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(D)              the Issuer has delivered irrevocable instructions to the Trustee under this Indenture to apply the deposited money toward the payment of the Notes at maturity or on the redemption date, as the case may be; and

(E)              the Issuer has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel each stating that all conditions precedent under this Indenture relating to the Discharge have been complied with.

(b)              Notwithstanding the satisfaction and discharge of this Indenture, if money shall have been deposited with the Trustee pursuant to subclause (A) of clause (2) of Section 10.01(a), the provisions of Section 10.02 and Section 8.06 shall survive.

1.19              Article 11 “Guarantees” is hereby amended and restated in its entirety as follows:

ARTICLE 11

GUARANTEES

Section 11.01              Guarantee .

(a)              Subject to this Article 11, each of the Parent and the Subsidiary Guarantors hereby, jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior unsecured basis, to each Holder and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Issuer hereunder or thereunder, that: (1) the principal, premium, if any, and interest on the Notes shall be promptly paid in full when due, whether at Stated Maturity, by acceleration, redemption or otherwise, and interest on the overdue principal and interest on the Notes, if any, if lawful, and all other obligations of the Issuer to the Holders or the Trustee hereunder or under the Notes shall be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (2) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise (the obligations so guaranteed, collectively, the “ Guaranteed Obligations ”).  Failing payment by the Issuer when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Parent and the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately.  Each of the Parent and Subsidiary Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.

(b)              The Parent and the Subsidiary Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, the recovery of any judgment against the Issuer, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor.  The Parent and each Subsidiary Guarantor hereby waive diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuer, any right to require a proceeding first against the Issuer, protest, notice and all demands whatsoever and covenants that this Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture, or pursuant to Section 11.06.
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(c)              Each of the Parent and the Subsidiary Guarantors also agrees, jointly and severally, to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) Incurred by the Trustee or any Holder in enforcing any rights under this Section 11.01.

(d)              If any Holder or the Trustee is required by any court or otherwise to return to the Issuer, the Parent, the Subsidiary Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to the Issuer, the Parent or the Subsidiary Guarantors, any amount paid either to the Trustee or such Holder, this Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect.

(e)              The Parent and each Subsidiary Guarantor agree that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Guaranteed Obligations until payment in full of all Guaranteed Obligations.  The Parent and each Subsidiary Guarantor further agree that, as between the Parent and the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (1) the maturity of the Guaranteed Obligations may be accelerated as provided in Article 6 for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations, and (2) 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 the Parent and the Subsidiary Guarantors for the purpose of this Guarantee.  The Parent and the Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor or Parent, as the case may be, so long as the exercise of such right does not impair the rights of the Holders under the Guarantees.

(f)              Each Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Issuer for liquidation or reorganization, should the Issuer become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Issuer’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes or the Guarantees, whether as a “voidable preference,” “fraudulent transfer” or otherwise, all as though such payment or performance had not been made.  In the event that any payment or any part thereof, is rescinded, reduced, restored or returned, the Notes shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.

(g)              In case any provision of any Guarantee shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

(h)              Each payment to be made by the Parent or a Subsidiary Guarantor in respect of its Guarantee shall be made without set-off, counterclaim, reduction or diminution of any kind or nature.

Section 11.02              Limitation on Parent and Subsidiary Guarantor Liability .

Each Subsidiary Guarantor and the Parent, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Guarantee of such Subsidiary Guarantor and the Parent not constitute a fraudulent conveyance or a fraudulent transfer for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to any Guarantee.  To effectuate the foregoing intention, the Trustee, the Holders, the Parent and the Subsidiary Guarantors hereby irrevocably agree that the obligations of each Subsidiary Guarantor and the Parent shall be limited to the maximum amount as will, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Subsidiary Guarantor or the Parent that are relevant under such laws and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Subsidiary Guarantor or the Parent in respect of the obligations of such other Subsidiary Guarantor or the Parent under this Article 11, result in the obligations of such Subsidiary Guarantor or the Parent under its Guarantee not constituting a fraudulent conveyance or fraudulent transfer under applicable law.  Each Subsidiary Guarantor and the Parent that makes a payment under its Guarantee will be entitled upon payment in full of all Guaranteed Obligations under this Indenture to a contribution from each other Subsidiary Guarantor or the Parent, as the case may be, in an amount equal to such other Subsidiary Guarantor’s or the Parent’s pro rata portion of such payment based on the respective net assets of all the Subsidiary Guarantors and the Parent at the time of such payment, determined in accordance with GAAP.
 

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Section 11.03              Execution and Delivery .

(a)              To evidence its Guarantee set forth in Section 11.01, each Subsidiary Guarantor and the Parent hereby agree that this Indenture or a supplemental indenture to this Indenture shall be executed on behalf of such Subsidiary Guarantor and the Parent, as the case may be, by an Officer or person holding an equivalent title.

(b)              Each Subsidiary Guarantor and the Parent hereby agree that its Guarantee set forth in Section 11.01 shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Guarantee on the Notes.

(c)              If an Officer whose signature is on this Indenture or a supplemental indenture to this Indenture no longer holds that office at the time the Trustee authenticates the Note, the Guarantees shall be valid nevertheless.

(d)              The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Guarantee set forth in this Indenture on behalf of the Subsidiary Guarantors and the Parent, as the case may be.

Section 11.04              Subrogation .

Each Subsidiary Guarantor and the Parent shall be subrogated to all rights of Holders against the Issuer in respect of any amounts paid by any Subsidiary Guarantor or the Parent, as the case may be, pursuant to the provisions of Section 11.01; provided that, if an Event of Default has occurred and is continuing, no Subsidiary Guarantor or the Parent shall be entitled to enforce or receive any payments arising out of, or based upon, such right of subrogation until all amounts then due and payable by the Issuer under this Indenture or the Notes shall have been paid in full.

Section 11.05              Benefits Acknowledged .

Each Subsidiary Guarantor and the Parent acknowledge that it will receive direct and indirect benefits from the financing arrangements contemplated by this Indenture and that the guarantee and waivers made by it pursuant to its Guarantee are knowingly made in contemplation of such benefits.

Section 11.06              Release of Guarantees .

(a)              A Guarantee by a Subsidiary Guarantor shall be automatically and unconditionally released and discharged, and no further action by such Subsidiary Guarantor, the Issuer or the Trustee shall be required for the release of such Subsidiary Guarantor’s Guarantee, upon:
 

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(1)(i)         upon the sale or other disposition (including by way of a consolidation or merger) of such Subsidiary Guarantor;

(ii)              upon the sale or disposition of all or substantially all assets of such Subsidiary Guarantor;

(iii)             at such time as such Subsidiary Guarantor no longer guarantees any (i) Credit Agreement or (ii) Material Capital Markets Debt of the Parent, the Issuer or any Subsidiary Guarantor;

(iv)             upon defeasance of the Notes, as provided under Article 8;

(v)        at such time as such Subsidiary Guarantor is no longer a Restricted Subsidiary; or

(vi)       as described under Article 9

in the case of Section 11.06(a)(1)(i) and (ii), other than to the Parent or a Restricted Subsidiary of the Parent; and

(2)              such Subsidiary Guarantor delivering to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for in this Indenture relating to such release have been complied with.

(b)              At the written request of the Issuer, the Trustee shall execute and deliver any documents reasonably required in order to evidence such release, discharge and termination in respect of the applicable Guarantee.

1.20              Section 12.02       “Notices” is hereby amended as follows:

(i)              After the first and last references to “the Issuer,” in Section 12.02(a)  “the Parent,” is added.

(ii)              After the reference to “the Issuer” in Section 12.02(a) immediately prior to the notice information for the Issuer, “, the Parent” is added.

1.21              Section 12.03     “Communication by Holders with Other Holders”  is hereby amended as follows:

(i)              After the reference to “the Issuer,” “the Parent,” is added.

1.22              Section 12.04     “Certificate and Opinion as to Conditions Precedent” is hereby amended as follows:

(i)              After each reference to “the Issuer”, “, the Parent” is added.

1.23              Section 12.07        “No Personal Liability of Directors, Officers, Employees, Members, Partners and Stockholders” is hereby amended as follows:

(i)              After the second reference to “or any Subsidiary Guarantor”, “, the Parent” is added.
 

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(ii)              After the first and last  reference to “Subsidiary Guarantor”, “or the Parent” is added.

1.24              Section 12.09        “Waiver of Jury Trial” is hereby amended as follows:

(i)              After the reference to “THE ISSUER”, “, THE PARENT” is added.

1.25              Section 12.12        “Successors” is hereby amended as follows:

(i)              After the reference to “Subsidiary Guarantor”, “and the Parent” is  added.

1.26              Section 12.19        “Qualification of Indenture” is hereby amended as follows:

(i)              After each reference to “the Issuer”, “, the Parent” is added.

Section 2.                            Application of Supplemental Indenture .

The Base Indenture, as supplemented by this First Supplemental Indenture, is in all respects ratified and confirmed.  This First Supplemental Indenture shall be deemed part of the Base Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby.

Section 3.                      Governing Law .

THIS FIRST SUPPLEMENTAL INDENTURE WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

Section 4.                      Waiver of Jury Trial .

EACH OF THE ISSUER, THE PARENT AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS FIRST SUPPLEMENTAL INDENTURE OR THE TRANSACTIONS CONTEMPLATED HEREBY.

Section 5.                      Successors .

All agreements of the Issuer, the Parent and the Trustee in this First Supplemental Indenture shall bind their successors.

Section 6.                      Counterpart Originals .

The parties may sign any number of copies of this First Supplemental Indenture.  Each signed copy shall be an original, but all of them together represent the same agreement.

Section 7.                      Trustee Makes No Representation .
 

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The Trustee makes no representation as to the validity or sufficiency of this First Supplemental Indenture.

[Signature Page Follows]
 

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IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be duly executed as of the day and year first above written.
 


  BLUE CUBE SPINCO INC., as Issuer  
       
 
By:
    
    Name:    
    Title:    
       
 
  OLIN CORPORATION, as Parent  
       
 
By:
    
    Name:    
    Title:    
       
 
  U.S. BANK NATIONAL ASSOCIATION,
as Trustee 		 
       
 
By:
    
    Name:    
    Title:    
       

 


 

 



Exhibit 4.2
 


 
 
 
 


SENIOR NOTES INDENTURE

Dated as of October 5, 2015

Between

BLUE CUBE SPINCO INC.

and

U.S. BANK NATIONAL ASSOCIATION,
as Trustee

10.00% SENIOR NOTES DUE 2025
 
 
 
 
 
 
 



 
CROSS-REFERENCE TABLE*
 
 
Trust Indenture Act 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)   
 
7.10
(c)   
 
N.A.
311(a)   
 
7.11
(b)   
 
7.11
(c)   
 
N.A.
312(a)   
 
2.05
(b)   
 
12.03
(c)   
 
12.03
313(a)   
 
7.06
(b)(1)   
 
N.A.
(b)(2)   
 
7.06; 7.07
(c)   
 
7.06; 12.02
(d)   
 
7.06
314(a)   
 
4.03; 12.02; 12.05
(b)   
 
N.A.
(c)(1)   
 
12.04
(c)(2)   
 
12.04
(c)(3)   
 
N.A.
(d)   
 
N.A.
(e)   
 
12.05
(f)   
 
N.A.
315(a)   
 
7.01
(b)   
 
7.05; 12.02
(c)   
 
7.01
(d)   
 
7.01
(e)   
 
6.14
316(a)(last sentence)   
 
2.09
(a)(1)(A)   
 
6.05
(a)(1)(B)   
 
6.04
(a)(2)   
 
N.A.
(b)   
 
6.07
(c)   
 
2.12; 9.04
317(a)(1)   
 
6.08
(a)(2)   
 
6.12
(b)   
 
2.04
318(a)   
 
12.01
(b)  
 
N.A.
(c)   
 
12.01
 
N.A. means not applicable.
*  This Cross-Reference Table is not part of the Indenture.
 
-i-
 
TABLE OF CONTENTS
 

    Page
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE
1
     
Section 1.01
Definitions
1
Section 1.02
Other Definitions
23
Section 1.03
Rules of Construction
24
Section 1.04
Incorporation by Reference of Trust Indenture Act
25
Section 1.05
Acts of Holders
25
     
ARTICLE 2 THE NOTES
27
     
Section 2.01
Form and Dating; Terms
27
Section 2.02
Execution and Authentication
28
Section 2.03
Registrar and Paying Agent
28
Section 2.04
Paying Agent to Hold Money in Trust
29
Section 2.05
Holder Lists
29
Section 2.06
Transfer and Exchange
29
Section 2.07
Replacement Notes
30
Section 2.08
Outstanding Notes
31
Section 2.09
Treasury Notes
31
Section 2.10
Temporary Notes
31
Section 2.11
Cancellation
31
Section 2.12
Defaulted Interest
32
Section 2.13
CUSIP and ISIN Numbers
32
     
ARTICLE 3 REDEMPTION
32
     
Section 3.01
Notices to Trustee
32
Section 3.02
Selection of Notes to Be Redeemed or Purchased
33
Section 3.03
Notice of Redemption
33
Section 3.04
Effect of Notice of Redemption
34
Section 3.05
Deposit of Redemption or Purchase Price
34
Section 3.06
Notes Redeemed or Purchased in Part
35
Section 3.07
Optional Redemption
35
Section 3.08
Mandatory Redemption
35
Section 3.09
Offers to Repurchase by Application of Excess Proceeds
35
     
ARTICLE 4 COVENANTS
38
     
Section 4.01
Payment of Notes
38
Section 4.02
Maintenance of Office or Agency
38
Section 4.03
Provision of Financial Information
38
Section 4.04
Compliance Certificate
39
Section 4.05
Limitation on Restricted Payments
39
Section 4.06
Limitation on Debt
42
Section 4.07
Limitation on Liens
43
Section 4.08
Limitation on Sale and Lease-Back Transactions.
45
Section 4.09
Future Guarantors
46
 
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Page
 
Section 4.10
Offer to Repurchase Upon Change of Control.
46
Section 4.11
Limitation on Asset Sales
48
Section 4.12
Effectiveness of Covenants.
50
     
ARTICLE 5 SUCCESSORS
50
     
Section 5.01
Consolidation, Merger, Conveyance, Transfer or Lease
50
Section 5.02
Successor Entity Substituted
52
     
ARTICLE 6 DEFAULTS AND REMEDIES
52
     
Section 6.01
Events of Default
52
Section 6.02
Acceleration
53
Section 6.03
Other Remedies
53
Section 6.04
Waiver of Past Defaults
54
Section 6.05
Control by Majority
54
Section 6.06
Limitation on Suits
54
Section 6.07
Rights of Holders to Receive Payment
55
Section 6.08
Collection Suit by Trustee
55
Section 6.09
Restoration of Rights and Remedies
55
Section 6.10
Rights and Remedies Cumulative
55
Section 6.11
Delay or Omission Not Waiver
56
Section 6.12
Trustee May File Proofs of Claim
56
Section 6.13
Priorities
56
Section 6.14
Undertaking for Costs
57
     
ARTICLE 7 TRUSTEE
57
     
Section 7.01
Duties of Trustee
57
Section 7.02
Rights of Trustee
58
Section 7.03
Individual Rights of Trustee
59
Section 7.04
Trustee’s Disclaimer
59
Section 7.05
Notice of Defaults
59
Section 7.06
Reports by Trustee to Holders of the Notes
59
Section 7.07
Compensation and Indemnity
60
Section 7.08
Replacement of Trustee
61
Section 7.09
Successor Trustee by Merger, etc.
61
Section 7.10
Eligibility; Disqualification
62
Section 7.11
Preferential Collection of Claims Against the Issuer
62
     
ARTICLE 8 DEFEASANCE AND COVENANT DEFEASANCE
62
     
Section 8.01
Option to Effect Defeasance or Covenant Defeasance
62
Section 8.02
Defeasance and Discharge
62
Section 8.03
Covenant Defeasance
63
Section 8.04
Conditions to Legal or Covenant Defeasance
63
Section 8.05
Deposited Money and Government Securities to Be Held in Trust; Other Miscellaneous Provisions
64
Section 8.06
Repayment to the Issuer
65
Section 8.07
Reinstatement
65
     
 
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Page
 
ARTICLE 9 AMENDMENT, SUPPLEMENT AND WAIVER
65
     
Section 9.01
Without Consent of Holders
65
Section 9.02
With Consent of Holders
66
Section 9.03
Compliance with Trust Indenture Act
68
Section 9.04
Revocation and Effect of Consents
68
Section 9.05
Notation on or Exchange of Notes
68
Section 9.06
Trustee to Sign Amendments, etc.
68
     
ARTICLE 10 SATISFACTION AND DISCHARGE
69
     
Section 10.01
Satisfaction and Discharge
69
Section 10.02
Application of Trust Money
69
     
ARTICLE 11 GUARANTEES
70
     
Section 11.01
Guarantee
70
Section 11.02
Limitation on Subsidiary Guarantor Liability
71
Section 11.03
Execution and Delivery
72
Section 11.04
Subrogation
72
Section 11.05
Benefits Acknowledged
72
Section 11.06
Release of Guarantees
72
     
ARTICLE 12 MISCELLANEOUS
73
     
Section 12.01
Trust Indenture Act Controls
73
Section 12.02
Notices
73
Section 12.03
Communication by Holders with Other Holders
74
Section 12.04
Certificate and Opinion as to Conditions Precedent
75
Section 12.05
Statements Required in Certificate or Opinion
75
Section 12.06
Rules by Trustee and Agents
75
Section 12.07
No Personal Liability of Directors, Officers, Employees, Members, Partners and Stockholders
75
Section 12.08
Governing Law
76
Section 12.09
Waiver of Jury Trial
76
Section 12.10
Force Majeure
76
Section 12.11
No Adverse Interpretation of Other Agreements
76
Section 12.12
Successors
76
Section 12.13
Severability
76
Section 12.14
Counterpart Originals
76
Section 12.15
Table of Contents, Headings, etc.
77
Section 12.16
Facsimile and PDF Delivery of Signature Pages
77
Section 12.17
U.S.A. PATRIOT Act
77
Section 12.18
Payments Due on Non-Business Days
77
Section 12.19
Qualification of Indenture
77
 
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Appendix A
Provisions Relating to Initial Notes, Additional Notes and Exchange Notes
   
Exhibit A
Form of Note
Exhibit B
Form of Institutional Accredited Investor Transferee Letter of Representation
Exhibit C
Form of Supplemental Indenture to Be Delivered by Subsequent Guarantors
Exhibit D
Form of First Supplemental Indenture



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INDENTURE, dated as of October 5, 2015, between Blue Cube Spinco Inc., a Delaware corporation (the “ Issuer ”), and U.S. Bank National Association, as Trustee.

W I T N E S S E T H

WHEREAS, the Issuer has duly authorized the creation of and issue of $500,000,000 aggregate principal amount of 10.00% Senior Notes due 2025 (the “ Initial Notes ”);

NOW, THEREFORE, the Issuer and the Trustee agree as follows for the benefit of each other and for the equal and ratable benefit of the Holders of the Notes.

ARTICLE 1

DEFINITIONS AND INCORPORATION BY REFERENCE

Section 1.01 Definitions .

“ 2023 Notes ” means the $720,000,000 aggregate principal amount of 9.75% Senior Notes due 2023 issued on the date hereof by the Issuer.

“ Acquired Debt ” means Debt (1) of a Person (including an Unrestricted Subsidiary) existing at the time such Person becomes a Restricted Subsidiary, or is merged with or into the Issuer or a Restricted Subsidiary, or (2) assumed in connection with the acquisition of assets from such Person. Acquired Debt shall be deemed to have been incurred, with respect to clause (1) of the preceding sentence, on the date such Person becomes a Restricted Subsidiary and, with respect to clause (2) of the preceding sentence, on the date of consummation of such acquisition of assets.

“ Additional Interest ” means any additional interest payable under the terms of the Registration Rights Agreement as a consequence of the failure to effectuate in a timely manner the exchange offer and/or shelf registration procedures set forth in the Registration Rights Agreement, as and to the extent provided for therein.

“ Additional Notes ” means additional Notes (other than the Initial Notes and Exchange Notes for such Initial Notes) issued from time to time under this Indenture in accordance with Section 2.01 and Section 4.06.

“ 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” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”) when used with respect to any Person means possession, directly or indirectly, of 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.

“ Agent ” means any Registrar or Paying Agent.

“ Asset Acquisition ” means:

(1) an Investment by the Issuer or any Restricted Subsidiary in any other Person pursuant to which such Person shall become a Restricted Subsidiary, or shall be merged with or into the Issuer or any Restricted Subsidiary; or
 
 

 
(2) the acquisition by the Issuer or any Restricted Subsidiary of the assets of any Person which constitute all or substantially all of the assets of such Person, any division or line of business of such Person or any other properties or assets of such Person other than in the ordinary course of business and consistent with past practices.

“Asset Sale” means any transfer, conveyance, sale, lease or other disposition (including, without limitation, dispositions pursuant to any consolidation or merger) by the Issuer or any of its Restricted Subsidiaries to any Person in any single transaction or series of transactions of:
 
(i) Capital Stock in another Person (other than directors’ qualifying shares or shares or interests required to be held by foreign nationals pursuant to local law); or

(ii) any other property or assets (other than in the normal course of business, including any sale or other disposition of obsolete or permanently retired equipment);

provided, however , that the term “Asset Sale” shall exclude:

(1) any asset disposition permitted by Section 5.01 that constitutes a disposition of all or substantially all of the assets of the Issuer and its Restricted Subsidiaries taken as a whole;

(2) any transfer, conveyance, sale, lease or other disposition of property or assets, the gross proceeds of which (exclusive of indemnities) do not exceed in any one or related series of transactions $25.0 million;

(3) sales or other dispositions of cash or Eligible Cash Equivalents;

(4) sales of interests in Unrestricted Subsidiaries;

(5) the sale and leaseback of any assets within 90 days of the acquisition thereof; provided that any assets acquired in the Transactions shall be deemed to have been acquired on the Issue Date;

(6) the disposition of assets that, in the good faith judgment of the Issuer, are no longer used or useful in the business of such entity;

(7) a Restricted Payment or Investment that is otherwise permitted by this Indenture;

(8) any trade-in of equipment in exchange for other equipment; provided, however that in the good faith judgment of the Issuer, the Issuer or such Restricted Subsidiary receives equipment having a fair market value equal to or greater than the equipment being traded in;

(9) the creation of a Lien (but not the sale or other disposition of the property subject to such Lien);

(10) leases or subleases in the ordinary course of business to third persons not interfering in any material respect with the business of the Issuer or any of its Restricted Subsidiaries and otherwise in accordance with the provisions of this Indenture;

(11) any disposition by a Restricted Subsidiary to the Issuer or by the Issuer or a Restricted Subsidiary to a Restricted Subsidiary;
 
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(12) dispositions of accounts receivable in connection with the collection or compromise thereof in the ordinary course of business and consistent with past practice;

(13) licensing or sublicensing of intellectual property or other general intangibles in accordance with industry practice in the ordinary course of business;

(14) any transfer of accounts receivable, or a fractional undivided interest therein, by a Receivable Subsidiary in a Qualified Receivables Transaction; or

(15) sales of accounts receivable to a Receivable Subsidiary pursuant to a Qualified Receivables Transaction for the fair market value thereof as determined by the Issuer in good faith; including cash or other financial accommodation, such as the provision of letters of credit by such Receivable Subsidiary on behalf of or for the benefit of the transferor of such accounts receivable, in an amount at least equal to 75% of the fair market value thereof as determined by the Issuer in good faith (for the purposes of this clause (15), Purchase Money Notes will be deemed to be cash).

For purposes of this definition, any series of related transactions that, if effected as a single transaction, would constitute an Asset Sale, shall be deemed to be a single Asset Sale effected when the last such transaction which is a part thereof is effected.

“ Attributable Debt ” means and as of any particular time, the present value, discounted at a rate per year equal to the weighted average of the interest rate of the Notes, compounded semi-annually, of the obligation of a lessee for rental payments, not including amounts payable by the lessee for maintenance, property taxes and insurance, due during the remaining term of any lease, including any period for which such lease has been extended or may, at the option of the lessor, be extended.

“ Average Life ” means, as of any date of determination, with respect to any Debt, the quotient obtained by dividing (i) the sum of the products of (x) the number of years from the date of determination to the dates of each successive scheduled principal payment (including any sinking fund or mandatory redemption payment requirements) of such Debt multiplied by (y) the amount of such principal payment by (ii) the sum of all such principal payments.

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

“beneficial ownership” has the meaning assigned to such term in Rule 13d‑3 and Rule 13d‑5 under the Exchange Act, and “ beneficial owner ” has a corresponding meaning
 
“Board of Directors” means:
 
(1)              with respect to the Issuer or any Subsidiary, its board of directors or any duly authorized committee thereof;

(2)              with respect to a corporation, the board of directors of such corporation or any duly authorized committee thereof; and

(3)              with respect to any other entity, the board of directors or similar body of the general partner or managers of such entity or any duly authorized committee thereof.

“ Business Day ” means each day that is not a Legal Holiday.
 
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“ Capital Stock ” means any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation) and any and all warrants or options to purchase any of the foregoing, but excluding any debt securities convertible or exchangeable into such equity.

“ Change of Control ” means the occurrence of any of the following after the Issue Date:

(1)              the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the property and assets of the Issuer and its Subsidiaries, taken as a whole, to any “person” (as that term is used in Section 13(d)(3) of the Exchange Act), other than the Issuer or one of its wholly-owned Subsidiaries;

(2)              the adoption of a plan relating to the liquidation or dissolution of the Issuer;

(3)              the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any “person” (as that term is used in Section 13(d)(3) of the Exchange Act) becomes the beneficial owner, directly or indirectly, of more than 50% of the Issuer’s Voting Stock, measured by voting power rather than number of shares; or

(4)              the merger or consolidation of the Issuer with or into another Person or the merger of another Person with or into the Issuer or the merger of any Person with or into a Subsidiary of the Issuer, unless the holders of a majority of the aggregate voting power of the Voting Stock of the Issuer, immediately prior to such transaction, hold securities of the surviving or transferee Person that represent, immediately after such transaction, at least a majority of the aggregate voting power of the Voting Stock of the surviving or transferee Person.

Notwithstanding the foregoing, the Transactions shall not constitute a Change of Control.

Notwithstanding the foregoing, a transaction effected to create a holding company for the Issuer will not be deemed to involve a Change of Control if (a) pursuant to such transaction the Issuer becomes a wholly-owned subsidiary of such holding company and (b) the holders of the Voting Stock of such holding company immediately following such transaction are the same as the holders of the Issuer’s Voting Stock immediately prior to such transaction.

“ Commission ” means the Securities and Exchange Commission.

“ Consolidated Cost Savings ” means, for any period, those synergies, operating expense reductions and cost-savings of the Issuer and its Restricted Subsidiaries that are reasonably identifiable, factually supportable and projected by the Issuer in good faith to be realized following the Issue Date as a result of restructurings, reorganizations, divestitures, cost savings initiatives, production rationalizations and other similar initiatives (collectively, “ Initiatives ”) (calculated on a pro forma basis as if such synergies, operating expense reductions and cost-savings had been realized on the first day of such period, and net of the amount of actual benefits realized during such period from such Initiatives to the extent already included in Consolidated Net Income for such period); provided that (i) no synergies, operating expense reductions or cost-savings shall be added to Consolidated EBITDA pursuant to clause (e) thereof to the extent duplicative of any expenses or charges otherwise added to (or excluded from) Consolidated EBITDA, whether through a pro forma adjustment or otherwise, for such period and (ii) projected amounts (and not yet realized) (x) may be added (the date on which such amounts are added, the “ Initiative Commencement Date ”) once actions in respect of such Initiative have been taken or are expected to be taken (in the good faith determination of the Issuer) within 12 months and (y) may no longer be added back in calculating Consolidated EBITDA pursuant to clause (e) thereof to the extent occurring more than six full fiscal quarters after the Initiative Commencement Date.
 
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“ Consolidated Debt Ratio ” means, as of any date of determination, the ratio of (1) the aggregate amount of Debt of the Issuer and its Restricted Subsidiaries then outstanding as of such date of determination to (2) Consolidated EBITDA for the most recent four consecutive fiscal quarters for which internal financial statements of the Issuer are available, in each case with pro forma and other adjustments to each of Debt and Consolidated EBITDA to reflect any incurrences or repayments of Debt and any acquisitions or dispositions of businesses or assets since the beginning of such four consecutive fiscal quarter period (which pro forma and other adjustments will be determined in good faith by a  responsible financial or accounting officer of the Issuer and shall not be required to be made in accordance with Regulation S-X promulgated by the Commission).

“ Consolidated EBITDA ” means, for any period, Consolidated Net Income for such period (adjusted to exclude all extraordinary or unusual items and any gains or losses on sales of assets outside the ordinary course of business) plus, without duplication and (except with respect to synergies included in Consolidated Cost Savings) to the extent deducted in calculating such Consolidated Net Income for such period, the sum of (a) income tax expense, (b) interest expense, amortization or writeoff of debt discount with respect to Debt, (c) depreciation and amortization expense, (d) amortization of intangibles (including, but not limited to, goodwill) and organization costs, (e) Consolidated Cost Savings; provided that with respect to any period, the aggregate amount added back in the calculation of Consolidated EBITDA for such period pursuant to this clause (e) and clause (f) below shall not exceed 20% of Consolidated EBITDA (in each case calculated prior to giving effect to any add-backs pursuant to this clause (e) and clause (f) below), (f) costs and expenses incurred in connection with the implementation of Initiatives; provided that with respect to any period, the aggregate amount added back in the calculation of Consolidated EBITDA for such period pursuant to this clause (f) and clause (e) above shall not exceed 20% of Consolidated EBITDA (in each case calculated prior to giving effect to any add-backs pursuant to this clause (f) and clause (e) above), (g) the sum (without duplication) of all non-recurring fees, costs and expenses incurred by the Issuer and its Restricted Subsidiaries, whether before, on or within six months after the Merger Closing Date, in connection with the Transactions during such period; provided that the aggregate amount added back in the calculation of Consolidated EBITDA pursuant to this clause (g) shall not exceed $100,000,000, (h) all payments triggered in respect of the Issuer’s non-qualified deferred compensation and post-retirement benefit plans in connection with the Transactions during such period, (i) any other non-cash charges and (j) adjustments and add-backs of the nature set forth in the Offering Memorandum under the section entitled “Summary—Summary historical and pro forma financial data”, minus, (x) any cash payments made during such period in respect of items described in clause (i) above subsequent to the fiscal quarter in which the relevant non-cash charge was reflected as a charge in the statement of Consolidated Net Income and (y) to the extent included in calculating such Consolidated Net Income for such period, any non-cash income (other than amounts accrued in the ordinary course of business under accrual-based revenue recognition procedures in accordance with GAAP).

“ Consolidated Fixed Charge Coverage Ratio ” means, with respect to any Person, the ratio of Consolidated EBITDA of such Person during the four full fiscal quarters for which financial statements are available (the “ Four Quarter Period ”) ending prior to the date of the transaction giving rise to the need to calculate the Consolidated Fixed Charge Coverage Ratio (the “ Transaction Date ”) to Consolidated Fixed Charges of such Person for the Four Quarter Period. In addition to and without limitation of the foregoing, for purposes of this definition, “Consolidated EBITDA” and “Consolidated Fixed Charges” shall be calculated after giving effect on a pro forma basis for the period of such calculation to:
 
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(i)              the incurrence of any Debt of such Person or any of its Restricted Subsidiaries (and the application of the proceeds thereof) and the repayment of other Debt, other than the incurrence or repayment of Debt in the ordinary course of business for working capital purposes pursuant to working capital facilities, occurring during the Four Quarter Period or at any time subsequent to the last day of the Four Quarter Period and on or prior to the Transaction Date, as if such incurrence or repayment, as the case may be (and the application of the proceeds thereof), occurred on the first day of the Four Quarter Period; and

(ii)              any Asset Sales or Asset Acquisitions (including, without limitation, any Asset Acquisition giving rise to the need to make such calculation as a result of such Person or one of its Restricted Subsidiaries (including any Person who becomes a Restricted Subsidiary as a result of the Asset Acquisition) incurring, assuming or otherwise being liable for Acquired Debt and also including any Consolidated EBITDA attributable to the assets which are the subject of the Asset Acquisition) occurring during the Four Quarter Period or at any time subsequent to the last day of the Four Quarter Period and on or prior to the Transaction Date, as if such Asset Sale or Asset Acquisition (including the incurrence, assumption or liability for any such Acquired Debt) occurred on the first day of the Four Quarter Period.

For purposes of this definition, pro forma calculations shall be made in good faith by a responsible financial or accounting officer of the Issuer and shall not be required to be made in accordance with Regulation S-X promulgated under the Securities Act, and such pro forma calculations may also include operating expense reductions for such period resulting from the Asset Sale or Asset Acquisition (as determined in good faith by senior management of the Issuer) for which pro forma effect is being given (A) that have been realized or (B) for which steps have been taken or are reasonably expected to be taken within six months of the date of such transaction and are supportable and quantifiable and, in each case, including, but not limited to (a) reduction in personnel expenses, (b) reduction of costs related to administrative functions, (c) reduction of costs related to leased or owned properties and (d) reductions from the consolidation of operations and streamlining of corporate overhead.

Furthermore, in calculating “Consolidated Fixed Charges” for purposes of determining the denominator (but not the numerator) of this “Consolidated Fixed Charge Coverage Ratio”:

(i)              interest on outstanding Debt determined on a fluctuating basis as of the Transaction Date and which will continue to be so determined thereafter shall be deemed to have accrued at a fixed rate per annum equal to the rate of interest on such Debt in effect on the Transaction Date;

(ii)              if interest on any Debt actually incurred on the Transaction Date may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rates, then the interest rate in effect on the Transaction Date will be deemed to have been in effect during the Four Quarter Period; and

(iii)              notwithstanding clause (i) or (ii) above, interest on Debt determined on a fluctuating basis, to the extent such interest is covered by agreements relating to Hedging Obligations, shall be deemed to accrue at the rate per annum resulting after giving effect to the operation of such agreements.

“Consolidated Fixed Charges ” means, with respect to any Person for any period, the sum of, without duplication, the amounts for such period of:

(1)              Consolidated Interest Expense; and
 
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(2)              the product of (a) all dividends and other distributions accrued during such period in respect of Redeemable Capital Interests and preferred stock of such Person and its Restricted Subsidiaries (other than dividends paid in Qualified Capital Interests), times (b) a fraction, the numerator of which is one and the denominator of which is one minus the then current combined federal, state and local statutory tax rate of such Person, expressed as a decimal.

“ Consolidated Interest Expense ” means, with respect to any Person for any period, without duplication, the sum of:

(1)              the total interest expense of such Person and its Restricted Subsidiaries for such period as determined on a consolidated basis in accordance with GAAP, including, without limitation:

(a)              any amortization of debt discount;

(b)              the net cost under any Hedging Obligation or Swap Contract in respect of interest rate protection (including any amortization of discounts);

(c)              the interest portion of any deferred payment obligation;

(d)              all commissions, discounts and other fees and charges owed with respect to financing activities or similar activities; and

(e)              all accrued interest;

(2)              the interest component of capital lease obligations paid, accrued and/or scheduled to be paid or accrued by such Person and its Restricted Subsidiaries during such period determined on a consolidated basis in accordance with GAAP; and

(3)              all capitalized interest of such Person and its Restricted Subsidiaries for such period; less interest income of such Person and its Restricted Subsidiaries for such period; provided , however , that Consolidated Interest Expense will exclude (i) the amortization or write-off of debt issuance costs and deferred financing fees, commissions, fees and expenses and (ii) any expensing of interim loan commitment and other financing fees.

“Consolidated Net Income ” means, for any period, the consolidated net income (or loss)  of the Issuer and its Restricted Subsidiaries, determined on a consolidated basis in accordance with GAAP; provided that there shall be excluded (a) the income (or deficit) of any Person accrued prior to the date it becomes a Restricted Subsidiary of the Issuer or is merged into or consolidated with the Issuer or any of its Restricted Subsidiaries, (b) the income (or deficit) of any Person (other than a Restricted Subsidiary of the Issuer) in which the Issuer or any of its Restricted Subsidiaries has an ownership interest, except to the extent that any such income is actually received by the Issuer or such Subsidiary in the form of dividends or similar distributions and (c) solely for the purposes of Section 4.05, the undistributed earnings of any Restricted Subsidiary of the Issuer to the extent that the declaration or payment of dividends or similar distributions by such Restricted Subsidiary is not at the time permitted by the terms of any contractual obligation or any law applicable to such Restricted Subsidiary.

“Consolidated Net Tangible Assets ” means the total amount of the Issuer’s consolidated assets after deducting therefrom (i) all current liabilities, excluding any thereof which are by their terms extendible or renewable at the option of the obligor thereon to a time more than 12 months after the time as of which the amount thereof is being computed and (ii) unamortized Debt discount and expense, goodwill, trademarks, brand names, patents and other intangible assets, all as shown on the Issuer’s latest audited consolidated financial statements at the time of the determination.
 
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“ Corporate Trust Office ” shall be at the address of the Trustee specified in Section 12.02 or such other address as to which the Trustee may give notice to the Holders and the Issuer.

“ Credit Agreement ” means the credit agreements, dated as of June 23, 2015 (as amended, supplemented or otherwise modified from time to time), among the Issuer or Olin Corporation, as applicable, the other borrowers party thereto, Wells Fargo Bank, National Association, as administrative agent, and the other agents and lenders named therein, providing for (i) a revolving credit facility, which, upon the consummation of the Merger on the Merger Closing Date, shall provide for borrowings by Olin Corporation and Olin Canada ULC and will be guaranteed by the Issuer and (ii) a term loan facility, which shall provide for borrowings by the Issuer and, upon the consummation of the Merger on the Merger Closing Date, will be guaranteed by Olin Corporation, together with all related notes, letters of credit, guarantees, and any other related agreements and instruments executed and delivered in connection therewith, in each case as amended, modified, supplemented, restated, refinanced, refunded or replaced in whole or in part from time to time including by or pursuant to any agreement or instrument that exchanges, extends, refinances, renews, replaces, substitutes or otherwise restructures the maturity of any indebtedness thereunder, or increases the amount of available borrowings thereunder, or adds Subsidiaries of Olin Corporation as additional borrowers or guarantors thereunder, in each case with respect to such agreement or any successor or replacement agreement and whether by the same or any other agent, lender, group of lenders, purchasers, institutional investors or debt holders.

“ Custodian ” means the Trustee, as custodian with respect to the Notes in global form, or any successor entity thereto.

“ Debt ” means any notes, bonds, debentures, loans or other similar evidences of indebtedness for money borrowed, issued, assumed or guaranteed by the Issuer or any Restricted Subsidiary.

“ Debt Facility” means one or more debt facilities (including, without limitation, the Credit Agreement and the Sumitomo Credit Agreement) or commercial paper facilities with banks or other institutional lenders providing for revolving credit loans, term loans, receivables financing (including through the sale of receivables to such lenders or to special purpose entities formed to borrow from such lenders against such receivables) or letters of credit or issuances of debt securities evidenced by notes, debentures, bonds or similar instruments, in each case, as amended, restated, modified, renewed, refunded, replaced or refinanced (including by means of sales of debt securities) in whole or in part from time to time (and whether or not with the original administrative agent, lenders or trustee or another administrative agent or agents, other lenders or trustee and whether provided under the original Credit Agreement and the original Sumitomo Credit Agreement or any other credit or other agreement or indenture).

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

“ Definitive Note ” means a certificated Initial Note, Additional Note or Exchange Note (bearing the Restricted Notes Legend if the transfer of such Note is restricted by applicable law) in physical form that does not include the Global Notes Legend.
 
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“ Depositary ” means, with respect to the Notes issuable or issued in whole or in part in global form, the Person specified in Section 2.03 as the Depositary with respect to the Notes, and any and all successors thereto appointed as Depositary hereunder and having become such pursuant to the applicable provision of this Indenture.

“ Designated Non-cash Consideration ” means the fair market value as determined in good faith by the Issuer of non-cash consideration received by the Issuer or a Restricted Subsidiary in connection with an Asset Sale that is so designated as Designated Non-cash Consideration pursuant to an Officers’ Certificate, setting forth the basis of such valuation less the amount of cash or Eligible Cash Equivalents received in connection with a subsequent sale of or collection on such Designated Non-cash Consideration.

“ DTC ” means The Depository Trust Company.

“ Eligible Bank ” means a bank or trust company that (i) is licensed, chartered or organized and existing under the laws of the United States of America, or any state, territory, province or possession thereof, (ii) as of the time of the making or acquisition of an Investment in such bank or trust company, has combined capital and surplus in excess of $500.0 million and (iii) the senior Debt of which is rated at least “A-2” by Moody’s or at least “A” by S&P.

“ Eligible Cash Equivalents ” means any of the following Investments: (i) securities issued or directly and fully guaranteed or insured by the United States or any agency or instrumentality thereof ( provided that the full faith and credit of the United States is pledged in support thereof) maturing not more than one year after the date of acquisition; (ii) time deposits in and certificates of deposit of any Eligible Bank, provided that such Investments have a maturity date not more than two years after date of acquisition and that the Average Life of all such Investments is one year or less from the respective dates of acquisition; (iii) repurchase obligations with a term of not more than 180 days for underlying securities of the types described in clause (i) above entered into with any Eligible Bank; (iv) direct obligations issued by any state of the United States or any political subdivision or public instrumentality thereof, provided that such Investments mature, or are subject to tender at the option of the holder thereof, within 365 days after the date of acquisition and, at the time of acquisition, have a rating of at least A from S&P or A-2 from Moody’s (or an equivalent rating by any other nationally recognized rating agency); (v) commercial paper of any Person other than an affiliate of the Issuer and other than structured investment vehicles, provided that such Investments have one of the two highest ratings obtainable from either S&P or Moody’s and mature within 180 days after the date of acquisition; (vi) overnight and demand deposits in and bankers’ acceptances of any Eligible Bank and demand deposits in any bank or trust company to the extent insured by the Federal Deposit Insurance Corporation against the Bank Insurance Fund; (vii) money market funds 95% of the assets of which comprise Investments of the types described in clauses (i) through (vi); and (viii) instruments equivalent to those referred to in clauses (i) through (vi) above or funds equivalent to those referred to in clause (vii) above denominated in U.S. dollars, Euros or any other foreign currency comparable in credit quality and tender to those referred to in such clauses and customarily used by corporations for cash management purposes in jurisdictions outside the United States to the extent reasonably required in connection with any business conducted by any Restricted Subsidiary organized in such jurisdiction, all as determined in good faith by the Issuer.

“Exchange Act” means the Securities Exchange Act of 1934, as amended.

“Exchange Notes” means notes issued in a registered exchange offer pursuant to the Registration Rights Agreement.

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

“Excluded Contributions ” means the net cash proceeds received by the Issuer after the Issue Date from:

(1) contributions to its common equity capital, and

(2) the sale (other than to a Restricted Subsidiary of the Issuer or to any Issuer management equity plan or stock option plan or any other management or employee benefit plan or agreement) of Capital Stock (other than Redeemable Capital Interests and preferred stock) of the Issuer;

provided, however that such net cash proceeds will be designated by the Issuer as “Excluded Contributions” in an Officers’ Certificate delivered to the Trustee and the net cash proceeds so designated will be excluded from the calculation set forth in Section 4.05(a)(iii).

“Foreign Restricted Subsidiary” means any Restricted Subsidiary other than a Restricted Subsidiary incorporated or otherwise organized or existing under the laws of the United States, any state thereof or any territory or possession of the United States.

“GAAP” means generally accepted accounting principles in the United States as in effect as of the Issue Date, including those set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as approved by a significant segment of the accounting profession.

“ Government Securities ” means securities that are (1) direct obligations of the United States for the timely payment of which its full faith and credit is pledged or (2) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States the timely payment of which is unconditionally guaranteed as a full faith and credit obligation of the United States, which, in either case, are not callable or redeemable at the option of the issuer thereof, and shall also include a depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act), as custodian with respect to any such Government Securities or a specific payment of principal of or interest on any such Government Securities held by such custodian for the account of the holder of such depositary receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the Government Securities or the specific payment of principal of or interest on the Government Securities evidenced by such depositary receipt.

“ guarantee ” means, as applied to any Debt of another Person, (i) a guarantee (other than by endorsement of negotiable instruments for collection in the normal course of business), direct or indirect, in any manner, of any part or all of such Debt, (ii) any direct or indirect obligation, contingent or otherwise, of a Person guaranteeing or having the effect of guaranteeing the Debt of any other Person in any manner and (iii) an agreement of a Person, direct or indirect, contingent or otherwise, the practical effect of which is to assure in any way the payment (or payment of damages in the event of non-payment) of all or any part of such Debt of another Person (and “guaranteed” and “guaranteeing” shall have meanings that correspond to the foregoing).

“ Guarantee ” means, with respect to the Notes, the Guarantee of a Subsidiary Guarantor pursuant to the terms of this Indenture.
 
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“ Hedging Obligations ” of any Person means the obligations of such Person pursuant to any interest rate agreement, currency agreement or commodity agreement.

“ Holder ” means a Person in whose name a Note is registered in the Registrar’s books.

“ incur ” means issue, create, assume, guarantee, incur or otherwise become liable for; provided, however , that any Debt or Capital Stock of a Person existing at the time such Person becomes a Restricted Subsidiary (whether by merger, consolidation, acquisition or otherwise) will be deemed to be incurred by such Restricted Subsidiary at the time it becomes a Restricted Subsidiary; and the terms “incurred” and “incurrence” have meanings correlative to the foregoing.

“ Indenture ” means this Indenture, as amended or supplemented from time to time.

“ Independent Financial Advisor ” means an accounting, appraisal, investment banking firm or consultant to Persons engaged in Permitted Businesses of nationally recognized standing that is, in the good faith judgment of the Issuer, qualified to perform the task for which it has been engaged.

“ Initial Notes ” has the meaning set forth in the recitals hereto.

“ interest ” with respect to the Notes means interest with respect thereto and Additional Interest, if any.

“ Interest Payment Date ” means, beginning with April 15, 2016, April 15 and October 15 of each year to Stated Maturity of the Notes.

“ Investment ” by any Person means any direct or indirect loan, advance, guarantee for the  benefit of (or other extension of credit) or capital contribution to (by means of any transfer of cash or other property or assets to another Person or any other payments for property or services for the account or use of another Person) another Person, including, without limitation, the following: (i) the purchase or acquisition of any Capital Stock or other evidence of beneficial ownership in another Person; (ii) the purchase, acquisition or guarantee of the Debt of another Person; and (iii) the purchase or acquisition of the business or assets of another Person substantially as an entirety but shall exclude: (a) accounts receivable and other extensions of trade credit in accordance with the Issuer’s customary practices; (b) the acquisition of property and assets from suppliers and other vendors in the normal course of business; and (c) prepaid expenses and workers’ compensation, utility, lease and similar deposits, in the normal course of business.

For purposes of Section 4.05 and the definition of “Unrestricted Subsidiary”:

(1)              “Investment” will include the portion (proportionate to the Issuer’s equity interest in the Restricted Subsidiary to be designated as an Unrestricted Subsidiary) of the fair market value as determined by the Issuer in good faith of the net assets of such Restricted Subsidiary of the Issuer at the time that such Restricted Subsidiary is designated an Unrestricted Subsidiary; provided , however , that upon a redesignation of such Subsidiary as a Restricted Subsidiary, the Issuer will be deemed to continue to have a permanent “Investment” in an Unrestricted Subsidiary in an amount (if positive) equal to (a) the Issuer’s “Investment” in such Subsidiary at the time of such redesignation less (b) the portion (proportionate to the Issuer’s equity interest in such Subsidiary) of the fair market value as determined by the Issuer in good faith of the net assets of such Subsidiary at the time that such Subsidiary is so re-designated as a Restricted Subsidiary; and

(2)              any property transferred to or from an Unrestricted Subsidiary will be valued at its fair market value at the time of such transfer, as determined by the Issuer in good faith.
 
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“ Investment Grade ” means a rating of Baa3 or better by Moody’s (or its equivalent under any successor rating categories of Moody’s) and BBB- or better by S&P (or its equivalent under any successor rating categories of S&P) (or, in each case, if such Rating Agency ceases to rate the Notes for reasons outside of the Issuer’s control, the equivalent investment grade credit rating from any Rating Agency selected by the Issuer as a replacement Rating Agency).

“ Issue Date ” means October 5, 2015.

“ Issuer ” means the party named as such in the first paragraph of this Indenture or any successor obligor to its obligations under this Indenture and the Notes pursuant to Article 5.

“ Legal Holiday ” means a Saturday, a Sunday or a day on which banking institutions are not required by law, regulation or executive order to be open in the State of New York.

“ Lien ” means, with respect to any property or other asset, any mortgage, deed of trust, deed to secure debt, pledge, hypothecation, assignment, deposit arrangement, security interest, lien (statutory or otherwise), charge, easement, encumbrance, preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever on or with respect to such property or other asset (including, without limitation, any conditional sale or other title retention agreement having substantially the same economic effect as any of the foregoing).

“ Material Capital Markets Debt ” means any Debt consisting of bonds, debentures, notes or other similar debt securities issued in (a) a public offering registered under the Securities Act, (b) a private placement to initial purchasers that is resold to institutional investors in accordance with Rule 144A or Regulation S of the Securities Act or (c) a placement to institutional investors, in each case in aggregate principal amount of $100.0 million or more. The term “Material Capital Markets Debt” shall not include any Debt under commercial bank facilities or similar Debt or any other type of Debt incurred in a manner not customarily viewed as a “securities offering.”

“ Merger ” means the merger of Blue Cube Acquisition Corp., a wholly-owned subsidiary of Olin Corporation, with and into the Issuer whereby the separate corporate existence of Blue Cube Acquisition Corp. will cease and the Issuer will continue as the surviving company and a wholly-owned subsidiary of Olin Corporation.

“ Merger Agreement ” means the Merger Agreement, dated as of March 26, 2015, among The Dow Chemical Company, the Issuer, Olin Corporation and Blue Cube Acquisition Corp., as amended or supplemented prior to the Merger Closing Date.

“ Merger Closing Date ” means the date the Merger is consummated.

“ Moody’s ” means Moody’s Investors Services, Inc. and any successor to its rating agency business.

“ Net Cash Proceeds ” means, with respect to Asset Sales of any Person, cash and Eligible Cash Equivalents received, net of: (i) all reasonable out-of-pocket costs and expenses of such Person incurred in connection with such a sale, including, without limitation, all legal, accounting, title and recording tax expenses, commissions and other fees and expenses incurred and all federal, state, foreign and local taxes arising in connection with such an Asset Sale that are paid or required to be accrued as a liability under GAAP by such Person; (ii) all payments made by such Person on any Debt that is secured by such properties or other assets in accordance with the terms of any Lien upon or with respect to such properties or other assets or that must, by the terms of such Lien or such Debt, or in order to obtain a necessary consent to such transaction or by applicable law, be repaid to any other Person (other than the Issuer or a Restricted Subsidiary thereof) in connection with such Asset Sale; and (iii) all contractually required distributions and other payments made to minority interest holders in Restricted Subsidiaries of such Person as a result of such transaction; provided, however , that: (a) in the event that any consideration for an Asset Sale (which would otherwise constitute Net Cash Proceeds) is required by (I) contract to be held in escrow pending determination of whether a purchase price adjustment will be made or (II) GAAP to be reserved against other liabilities in connection with such Asset Sale, such consideration (or any portion thereof) shall become Net Cash Proceeds only at such time as it is released to such Person from escrow or otherwise; and (b) any non-cash consideration received in connection with any transaction, which is subsequently converted to cash, shall become Net Cash Proceeds only at such time as it is so converted.
 
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“ Non-Guarantor Subsidiary ” means any Restricted Subsidiary that is not a Subsidiary Guarantor.

“ Notes ” means the Initial Notes and more particularly means any Note authenticated and delivered under this Indenture.  For all purposes of this Indenture, the term “ Notes ” shall also include any Additional Notes that may be issued under a supplemental indenture and Notes to be issued or authenticated upon transfer, replacement or exchange of Notes.

“ Offering Memorandum ” means the offering memorandum dated September 25, 2015 related to the offer and sale of the Notes.

“ Offer to Purchase ” means an Asset Sale Offer or a Change of Control Offer.

“ Officer ” means the Chairman of the Board, the Chief Executive Officer, the President, the Chief Financial Officer, any Executive Vice President, Senior Vice President or Vice President, the Treasurer or the Secretary of the Issuer or, in the event that the Issuer is a partnership or a limited liability company that has no such officers, a person duly authorized under applicable law by the general partner, managers, members or a similar body to act on behalf of the Issuer.

“ Officers’ Certificate ” means a certificate signed by two Officers of the Issuer.

“ 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 the Issuer.

“ Permitted Asset Swap ” means the concurrent purchase and sale or exchange of properties or assets (other than securities) that are used or useful in a Permitted Business or a combination of such assets and cash or Eligible Cash Equivalents between the Issuer or any of its Restricted Subsidiaries and another Person; provided, however that any cash and Eligible Cash Equivalents must be applied in accordance with Section 4.11.

“ Permitted Business ” means any business similar in nature to any business conducted by the Issuer and the Restricted Subsidiaries on the Issue Date and any business reasonably ancillary, incidental, complementary or related to, or a reasonable extension, development or expansion of, the business conducted by the Issuer and the Restricted Subsidiaries on the Issue Date, in each case, as determined in good faith by the Issuer.

“ Permitted Debt ” means
 
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(1) Debt incurred by the Issuer or any Subsidiary Guarantor pursuant to any Debt Facilities in an aggregate principal amount at any one time outstanding not to exceed (x) $2,880.0 million minus (y) any amount used to permanently repay such obligations (or permanently reduce commitments with respect thereto) pursuant to Section 4.11;

(2) Debt under (a) the Notes issued on the Issue Date and any Exchange Notes issued in exchange for such Notes and (b) the 2023 Notes issued on the Issue Date and any exchange notes issued in exchange for such notes;

(3) Guarantees of the Notes and any Exchange Notes issued in exchange for such Notes and guarantees of the 2023 Notes and any exchange notes issued in exchange for such notes;

(4) Debt of the Issuer or any Restricted Subsidiary outstanding on the Issue Date (other than Debt incurred pursuant to clauses (1), (2) or (3) above);

(5) guarantees incurred by the Issuer of Debt of a Restricted Subsidiary otherwise permitted to be incurred under this Indenture;

(6) guarantees by any Restricted Subsidiary of Debt of the Issuer or any other Restricted Subsidiary, including guarantees by any Restricted Subsidiary of Debt under the Credit Agreement and the Sumitomo Credit Agreement; provided, however, that (a) such Debt is permitted to be incurred under this Indenture and (b) if the Debt being guaranteed is subordinated in right of payment to the Notes, such guarantees are subordinated to the Notes to the same extent, if any, as the Debt being guaranteed;

(7) Debt incurred in respect of workers’ compensation claims and self-insurance obligations, and, for the avoidance of doubt, indemnity, bid, performance, warranty, release, appeal, surety and similar bonds, letters of credit for operating purposes and completion guarantees provided or incurred (including guarantees thereof) by the Issuer or a Restricted Subsidiary in the ordinary course of business;

(8) Debt under Swap Contracts and Hedging Obligations incurred in the ordinary course of business and not for speculative purposes;

(9) Debt owed by the Issuer to any Restricted Subsidiary, or by any Restricted Subsidiary to the Issuer or to any other Restricted Subsidiary, provided that if for any reason such Debt ceases to be held by the Issuer or a Restricted Subsidiary, as applicable, such Debt shall cease to be Permitted Debt under this clause (9) and shall be deemed incurred as Debt of the Issuer for purposes of this Indenture;

(10) Debt of the Issuer or a Subsidiary Guarantor pursuant to capital lease obligations, synthetic lease obligations and Purchase Money Debt and any Refinancing Debt that Refinances any Debt incurred pursuant to this clause (10); provided , however that the aggregate principal amount of all Debt incurred under this clause (10) and outstanding at any time may not exceed $100.0 million in the aggregate;

(11) Debt arising from agreements of the Issuer or a Restricted Subsidiary providing for indemnification, contribution, earnout, adjustment of purchase price or similar obligations, in each case, incurred or assumed in connection with the acquisition or disposition of any business, assets or Capital Stock of a Restricted Subsidiary otherwise permitted under this Indenture;
 
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(12) the issuance by any of the Issuer’s Restricted Subsidiaries to the Issuer or to any of its Restricted Subsidiaries of shares of Redeemable Capital Interests or preferred stock; provided , however , that:

(a) any subsequent issuance or transfer of Capital Stock that results in any such Redeemable Capital Interests being held by a Person other than the Issuer or a Restricted Subsidiary; and

(b) any sale or other transfer of any such Redeemable Capital Interests to a Person that is not either the Issuer or a Restricted Subsidiary;

shall be deemed, in each case, to constitute an issuance of such Redeemable Capital Interests by such Restricted Subsidiary that was not permitted by this clause (12);

(13) Debt 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 Debt is extinguished within five business days of incurrence;

(14) Debt of the Issuer or a Restricted Subsidiary not otherwise permitted pursuant to this definition, in an aggregate principal amount not to exceed $150.0 million at any time outstanding;

(15) Purchase Money Notes incurred by any Receivable Subsidiary that is a Restricted Subsidiary in a Qualified Receivables Transaction and Non-Recourse Receivable Subsidiary Indebtedness;  p rovided , however that the aggregate amounts incurred and outstanding under all Qualified Receivables Transactions shall not exceed $250.0 million;

(16) Debt of Foreign Restricted Subsidiaries in an aggregate principal amount not to exceed $50.0 million at any one time outstanding;

(17) (x) Debt of the Issuer or any Subsidiary Guarantor incurred or issued to finance an acquisition or (y) Acquired Debt; provided , however , that after giving pro forma effect to such acquisition, merger or consolidation, and the incurrence of such Debt (including pro forma application of the proceeds thereof), either:

(a) the Issuer would be permitted to incur at least $1.00 of additional Coverage Debt pursuant to Section 4.06(a);

(b) the Consolidated Fixed Charge Coverage Ratio of the Issuer and its Restricted Subsidiaries would not be lower than such ratio immediately prior to such acquisition, merger or consolidation; or

(c) such Debt constitutes Acquired Debt (other than Debt incurred in contemplation of the transaction or series of transactions pursuant to which such Person became a Restricted Subsidiary or was otherwise acquired by the Issuer or a Restricted Subsidiary); provided that the only obligors with respect to such Debt shall be those Persons who were obligors of such Debt prior to such acquisition, merger or consolidation; and

(18) Refinancing Debt that Refinances Coverage Debt or Debt incurred pursuant to clauses (2), (4), (17) or this clause (18) of this definition of “Permitted Debt.”
 
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“ Permitted Investments ” means:

(1)              Investments in existence on the Issue Date;

(2)              Investments required pursuant to any agreement or obligation of the Issuer or a Restricted Subsidiary, in effect on the Issue Date, to make such Investments;

(3)              Investments in cash and Eligible Cash Equivalents;

(4)              Investments in property and other assets, owned or used by the Issuer or any Restricted Subsidiary in the normal course of business;

(5)              Investments by the Issuer or any of its Restricted Subsidiaries in the Issuer or any Restricted Subsidiary;

(6)              Investments by the Issuer or any Restricted Subsidiary in a Person, if as a result of such Investment (A) such Person becomes a Restricted Subsidiary or (B) such Person is merged, consolidated or amalgamated with or into, or transfers or conveys substantially all of its assets to, or is liquidated or wound-up into, the Issuer or a Restricted Subsidiary;

(7)              Swap Contracts and Hedging Obligations;

(8)              receivables owing to the Issuer or any of its Restricted Subsidiaries and advances to suppliers, in each case if created, acquired or made in the ordinary course of business and payable or dischargeable in accordance with customary trade terms;

(9)              Investments received in settlement of obligations owed to the Issuer or any Restricted Subsidiary and as a result of bankruptcy or insolvency proceedings or upon the foreclosure or enforcement of any Lien in favor of the Issuer or any Restricted Subsidiary;

(10)              Investments by the Issuer or any Restricted Subsidiary not otherwise permitted under this definition, in an aggregate amount not to exceed the greater of (i) $250.0 million and (ii) 5% of Consolidated Net Tangible Assets at any one time outstanding;

(11)              loans and advances to officers, directors and employees of the Issuer and Restricted Subsidiaries in an aggregate amount not to exceed $10.0 million in the aggregate at any one time outstanding, for travel, entertainment, relocation and analogous ordinary business purposes;

(12)              Investments the payment for which consists solely of Capital Stock of the Issuer;

(13)              any Investment in any Person to the extent such Investment represents the non-cash portion of the consideration received in connection with an Asset Sale consummated in compliance with Section 4.11 or any other disposition of property not constituting an Asset Sale;

(14)              payroll, travel 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 and consistent with past practice;

(15)              guarantees by the Issuer or any Restricted Subsidiary of Debt of the Issuer or a Restricted Subsidiary (other than a Receivables Subsidiary) of Debt otherwise permitted by Section 4.06;
 
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(16)              any Investment by the Issuer or any Restricted Subsidiary in a Receivable Subsidiary or any Investment by a Receivable Subsidiary in any other Person in connection with a Qualified Receivables Transaction, so long as any Investment in a Receivable Subsidiary is in the form of a Purchase Money Note or an Investment in Capital Stock; and

(17)              other Investments in any Person that is a joint venture engaged in a Permitted Business (other than an Investment in an Unrestricted Subsidiary) having an aggregate fair market value as determined by the Issuer in good faith (measured on the date each such Investment was made and without giving effect to subsequent changes in value), when taken together with all other Investments made pursuant to this clause (q) since the Issue Date and existing at the time of the Investment, which is the subject of the determination, was made, not to exceed the greater of (i) $125 million and (ii) 2.5% of Consolidated Net Tangible Assets.

“ Person ” means any individual, corporation, limited liability company, partnership, joint venture, trust, unincorporated organization or government or any agency or political subdivision thereof.

“ Principal Property ” means any of the Issuer’s properties or plants or the properties or plants of any Restricted Subsidiary primarily used for the manufacture of products and located within the United States or its territories or possessions, except any such property or plant which the Board of Directors of the Issuer by resolution declares is not of material importance to the total business conducted by the Issuer and its Subsidiaries as an entirety.

“ Purchase Money Debt ” means Debt

(1)              incurred to finance the purchase or construction (including additions and improvements thereto) of any assets (other than Capital Stock) of such Person or any Restricted Subsidiary; and

(2)              that is secured by a Lien on such assets where the lender’s sole security is to the assets so purchased or constructed (or any facility which such assets constitute a part of); in either case, that does not exceed 100% of the cost.

“ Purchase Money Note ” means a promissory note of a Receivable Subsidiary issued to the Issuer or any Restricted Subsidiary, to pay all or a portion of the purchase price of receivables and assets related thereto described in the definition of “Qualified Receivables Transaction” that are purchased in connection with a Qualified Receivables Transaction. The repayment of a Purchase Money Note may be subordinated to the repayment of other liabilities of the Receivable Subsidiary on terms determined in good faith by the Issuer to be substantially consistent with market practice in connection with Qualified Receivables Transactions.

“ Qualified Capital Interests ” in any Person means a class of Capital Stock other than Redeemable Capital Interests.

“ Qualified Receivables Transaction ” means any transaction or series of transactions entered into by the Issuer or any of its Restricted Subsidiaries pursuant to which the Issuer or such Restricted Subsidiary transfers to (1) a Receivable Subsidiary (in the case of a transfer by the Issuer or any of its Restricted Subsidiaries) or (2) any other Person (in the case of a transfer by a Receivable Subsidiary), or grants a security interest in, any accounts receivable (whether now existing or arising in the future) of the Issuer or any of its Restricted Subsidiaries, and any assets related thereto, including, without limitation, all collateral securing such accounts receivable, all contracts and all guarantees or other obligations in respect of such accounts receivable, proceeds of such accounts receivable and other assets which are customarily transferred or in respect of which security interests are customarily granted in connection with an accounts receivable financing transaction; provided such transaction is on market terms as determined in good faith by the Issuer at the time the Issuer or such Restricted Subsidiary enters into such transaction.
 
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“ Rating Agency ” means (1) each of Moody’s and S&P and (2) if either of Moody’s or S&P ceases to rate the Notes or fails to make a rating of the Notes publicly available for reasons outside of the Issuer’s control, a “nationally recognized statistical rating organization” within the meaning of Section 3(a)(62) under the Exchange Act selected by the Issuer as a replacement agency for Moody’s or S&P, or both, as the case may be.

“ Receivable Subsidiary ” means a Subsidiary of the Issuer:

(1)              that is formed solely for the purpose of, and that engages in no activities other than activities in connection with, financing accounts receivable of the Issuer and/or its Restricted Subsidiaries, including providing letters of credit on behalf of or for the benefit of the Issuer and/or its Restricted Subsidiaries;

(2)              that is designated by the Board of Directors of the Issuer as a Receivable Subsidiary pursuant to an Officers’ Certificate that is delivered to the Trustee;

(3)              that is either (a) a Restricted Subsidiary or (b) an Unrestricted Subsidiary designated in accordance with the definition of “Unrestricted Subsidiary”;

(4)              no portion of the Debt or any other obligation (contingent or otherwise) of which (a) is at any time guaranteed by the Issuer or any Restricted Subsidiary (excluding guarantees of obligations (other than any guarantee of Debt) pursuant to Standard Securitization Undertakings), (b) is at any time recourse to or obligates the Issuer or any Restricted Subsidiary in any way, other than pursuant to Standard Securitization Undertakings or (c) subjects any asset of the Issuer or any other Restricted Subsidiary of the Issuer, directly or indirectly, contingently or otherwise, to the satisfaction thereof, other than pursuant to Standard Securitization Undertakings (such Debt, “Non-Recourse Receivable Subsidiary Indebtedness”);

(5)              with which neither the Issuer nor any Restricted Subsidiary has any material contract, agreement, arrangement or understanding other than (a) contracts, agreements, arrangements and understandings entered into in connection with a Qualified Receivables Transaction, (b) fees payable in the ordinary course of business in connection with servicing accounts receivable in connection with such a Qualified Receivables Transaction as determined in good faith by the Board of Directors of the Issuer and (c) any Purchase Money Note issued by such Receivable Subsidiary to the Issuer or a Restricted Subsidiary or any letters of credit provided by such Receivable Subsidiary on behalf of or for the benefit of the Issuer or any Restricted Subsidiary; and

(6)              with respect to which neither the Issuer nor any other Restricted Subsidiary has any obligation (a) to subscribe for additional shares of Capital Stock therein or make any additional capital contribution or similar payment or transfer thereto except in connection with a Qualified Receivables Transaction or (b) to maintain or preserve the solvency or any balance sheet term, financial condition, level of income or results of operations thereof.
 
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“ Record Date ” for the interest or Additional Interest, if any, payable on any applicable Interest Payment Date means the April 1 or October 1 (whether or not a Business Day) next preceding such Interest Payment Date.

“ Redeemable Capital Interests ” in any Person means any equity security of such Person that by its terms (or by terms of any security into which it is convertible or for which it is exchangeable), or otherwise (including the passage of time or the happening of an event), is required to be redeemed, is redeemable at the option of the holder thereof in whole or in part (including by operation of a sinking fund), or is convertible or exchangeable for Debt of such Person at the option of the holder thereof, in whole or in part, at any time prior to the Stated Maturity of the Notes; provided that only the portion of such equity security which is required to be redeemed, is so convertible or exchangeable or is so redeemable at the option of the holder thereof before such date will be deemed to be Redeemable Capital Interests. Notwithstanding the preceding sentence, any equity security that would constitute Redeemable Capital Interests solely because the holders of the equity security have the right to require the Issuer to repurchase such equity security upon the occurrence of a Change of Control or an Asset Sale will not constitute Redeemable Capital Interests if the terms of such equity security provide that the Issuer may not repurchase or redeem any such equity security pursuant to such provisions unless such repurchase or redemption complies with Section 4.05. The amount of Redeemable Capital Interests deemed to be outstanding at any time for purposes of this Indenture will be the maximum amount that the Issuer and its Restricted Subsidiaries may become obligated to pay upon the maturity of, or pursuant to any mandatory redemption provisions of, such Redeemable Capital Interests or portion thereof, exclusive of accrued dividends.

“Refinance ” means, in respect of any Debt, to refinance, extend, renew, refund, repay, prepay, purchase, redeem, defease or retire, or to issue other Debt in exchange or replacement for, such Debt. “Refinanced” and “Refinancing” shall have correlative meanings.

“ Refinancing Debt ” means Debt that Refinances any Debt incurred by the Issuer or any Restricted Subsidiary pursuant to the terms of this Indenture, whether involving the same or any other lender or creditor or group of lenders or creditors, but only to the extent that

(1)              if the Debt being refinanced is subordinated in right of payment to the Notes, the Refinancing Debt is subordinated to the Notes to at least the same extent as the Debt being Refinanced if such Debt was subordinated to the Notes,

(2)              the Refinancing Debt is scheduled to mature either (a) no earlier than the Debt being Refinanced or (b) at least 91 days after the maturity date of the Notes,

(3)              the Refinancing Debt has an Average Life at the time such Refinancing Debt is incurred that is equal to or greater than the Average Life of the Debt being Refinanced,

(4)              such Refinancing Debt is in 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 fees and expenses, including any premium and defeasance costs) with respect to the Debt being Refinanced, and

(5)              Refinancing Debt shall not include Debt of a Non-Guarantor Subsidiary that refinances Debt of the Issuer or a Subsidiary Guarantor.
 
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“ Registration Rights Agreement ” means that certain Registration Rights Agreement to be dated as of the Issue Date among the Issuer, Olin Corporation and the initial purchasers set forth therein as applicable to the Notes, and, with respect to any Additional Notes, one or more substantially similar registration rights agreements among the Issuer, Olin Corporation and the other parties thereto, as such agreements may be amended from time to time.

“ Responsible Officer ” means, when used with respect to the Trustee, any officer within the corporate trust department of the Trustee having direct responsibility for the administration of this Indenture, or any other officer to whom any corporate trust matter is referred because of such officer’s knowledge of and familiarity with the particular subject.

“ Restricted Payment ” is defined to mean any of the following:

(1) any dividend or other distribution declared and paid on the Capital Stock in the Issuer or on the Capital Stock in any Restricted Subsidiary of the Issuer that are held by, or declared and paid to, any Person other than the Issuer or a Restricted Subsidiary of the Issuer (other than (i) dividends, distributions or payments made solely in Qualified Capital Interests in the Issuer and (ii) dividends or distributions payable to the Issuer or a Restricted Subsidiary of the Issuer or to other holders of Capital Stock of a Restricted Subsidiary on a pro rata basis);

(2) any payment (including, without limitation, in connection with a merger, consolidation or amalgamation) made by the Issuer or any of its Restricted Subsidiaries to purchase, redeem, acquire or retire any Capital Stock in the Issuer (including the conversion into, or exchange for, Debt, of any Capital Stock) other than any such Capital Stock owned by the Issuer or any Restricted Subsidiary (other than a payment made solely in Qualified Capital Interests in the Issuer);

(3) any payment made by the Issuer or any of its Restricted Subsidiaries (other than a payment made solely in Qualified Capital Interests in the Issuer) to redeem, repurchase, defease (including an in substance or legal defeasance) or otherwise acquire or retire for value (including pursuant to mandatory repurchase covenants), prior to any scheduled maturity, scheduled sinking fund or mandatory redemption payment, Debt of the Issuer or any Subsidiary Guarantor that is subordinate in right of payment to the Notes or Guarantees (excluding any Debt owed to the Issuer or any Restricted Subsidiary); except payments of principal and interest in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, within one year of the due date thereof;

(4) any Investment by the Issuer or a Restricted Subsidiary in any Person, other than a Permitted Investment; and

(5) any designation of a Restricted Subsidiary as an Unrestricted Subsidiary.

“ Restricted Subsidiary ” means any Subsidiary of the Issuer other than an Unrestricted Subsidiary.

“ S&P ” means Standard & Poor’s Ratings Services, a Standard & Poor’s Financial Services LLC business, and any successor to its rating agency business.

“ Securities Act ” means the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder.
 
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“ Separation Agreement ” means the Separation Agreement, dated as of March 26, 2015, between The Dow Chemical Company and the Issuer, as amended or supplemented prior to the Merger Closing Date.

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

“ Significant Subsidiary ” means any Restricted Subsidiary of the Issuer that constitutes a “significant subsidiary” within the meaning set forth in Rule 1-02 of Regulation S-X promulgated by the Commission.

“ Standard Securitization Undertakings ” means representations, warranties, covenants and indemnities entered into by the Issuer or any Restricted Subsidiary which are reasonably customary in an accounts receivable securitization transaction as determined in good faith by the Issuer, including guarantees by the Issuer or any Restricted Subsidiary of any of the foregoing obligations of the Issuer or a Restricted Subsidiary.

“ Stated Maturity, ” when used with respect to (i) any Note or any installment of interest thereon, means the date specified in such Note as the fixed date on which the principal amount of such Note or such installment of interest is due and payable and (ii) any other indebtedness or any installment of interest thereon, means the date specified in the instrument governing such indebtedness as the fixed date on which the principal of such indebtedness or such installment of interest is due and payable.

“ Subsidiary ” of any Person means any corporation, association or other business entity of which more than 50%, by number of votes, of the Voting Stock is at the time directly or indirectly owned by such Person.  Unless otherwise specified herein, each reference to a Subsidiary will refer to a Subsidiary of the Issuer.

“ Subsidiary Guarantor ” means each Restricted Subsidiary of the Issuer that executes a supplemental indenture, including in the form set forth in Exhibit C hereto, providing its Guarantee pursuant to the terms of this Indenture after the Issue Date.

“ Sumitomo Credit Agreement ” means the credit agreement, dated as of August 25, 2015 (as amended, supplemented or otherwise modified from time to time), among the Issuer, Olin Corporation and the agents and lenders named therein, providing for a term loan facility, which shall provide for borrowings by Olin Corporation, together with all related notes, letters of credit, guarantees, and any other related agreements and instruments executed and delivered in connection therewith, in each case as amended, modified, supplemented, restated, refinanced, refunded or replaced in whole or in part from time to time including by or pursuant to any agreement or instrument that exchanges, extends, refinances, renews, replaces, substitutes or otherwise restructures the maturity of any indebtedness thereunder, or increases the amount of available borrowings thereunder, or adds Subsidiaries of Olin Corporation as additional borrowers or guarantors thereunder, in each case with respect to such agreement or any successor or replacement agreement and whether by the same or any other agent, lender, group of lenders, purchasers, institutional investors or debt holders.

“ Swap Contract ” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including, without limitation, any fuel price caps and fuel price collar or floor agreements and similar agreements or arrangements designed to protect against or manage fluctuations in fuel prices and any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “ Master Agreement ”), including any such obligations or liabilities under any Master Agreement.
 
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“ Transactions ” shall have the definition set forth in the Offering Memorandum.

“ Transfer Restricted Notes ” means Definitive Notes and any other Notes that bear or are required to bear the Restricted Notes Legend.

“ Trust Indenture Act ” means the Trust Indenture Act of 1939, as amended.

“ Trustee ” means U.S. Bank National Association, as trustee, until a successor replaces it in accordance with the applicable provisions of this Indenture and thereafter means the successor serving hereunder.

“ Unrestricted Subsidiary ” means:

(1)              any direct or indirect Subsidiary of the Issuer which at the time of determination is an Unrestricted Subsidiary (as designated by the Board of Directors of the Issuer, as provided below) and

(2)              any Subsidiary of an Unrestricted Subsidiary.

The Board of Directors of the Issuer may designate any direct or indirect Subsidiary of the Issuer (including any existing Subsidiary and any newly-acquired or newly-formed direct or indirect Subsidiary) to be an Unrestricted Subsidiary unless such Subsidiary or any of its Subsidiaries owns any Capital Stock or Debt of, or owns or holds any Lien on, any property of, the Issuer or any  Subsidiary of the Issuer (other than any Subsidiary of the Subsidiary to be so designated); provided that

(a)              any Unrestricted Subsidiary must be an entity of which the Capital Stock entitled to cast at least a majority of the votes that may be cast by all Capital Stock having ordinary voting power for the election of directors or other governing body are owned, directly or indirectly, by the Issuer,

(b)              such designation complies with Section 4.05 and

(c)              each of

(1)              the Subsidiary to be so designated and

(2)              its Subsidiaries

has not at the time of designation, and does not thereafter, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable with respect to any Debt pursuant to which the lender has recourse to any of the assets of the Issuer or any Restricted Subsidiary.
 
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The Board of Directors of the Issuer may designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that immediately after giving effect to such designation no Default or Event of Default shall have occurred and be continuing and either:

(1)              the Issuer could incur at least $1.00 of additional Debt pursuant to the Consolidated Fixed Charge Coverage Ratio test described under Section 4.06 or

(2)              the Consolidated Fixed Charge Coverage Ratio for the Issuer and the Restricted Subsidiaries on a consolidated basis would be greater than or equal to such ratio for the Issuer and the Restricted Subsidiaries on a consolidated basis immediately prior to such designation, in each case on a pro forma basis taking into account such designation.

Any such designation by the Board of Directors of the Issuer shall be notified by the Issuer to the Trustee by promptly filing with the Trustee a copy of a resolution of the board of directors of the Issuer giving effect to such designation and an Officers’ Certificate certifying that such designation complied with the foregoing provisions.

“ 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 (or Persons performing similar functions).

Section 1.02 Other Definitions .
 
Term
 
Defined in Section
     
“Agent Members”   
 
2.1(c) of Appendix A
“Applicable Procedures”   
 
1.1(a) of Appendix A
“Asset Sale Offer”   
 
4.11(c)
“Asset Sale Offer Amount”   
 
3.09(b)
“Asset Sale Offer Period”   
 
3.09(b)
“Asset Sale Purchase Date”   
 
3.09(b)
“Authentication Order”   
 
2.02(c)
“Change of Control Offer”   
 
4.10(a)
“Change of Control Payment”   
 
4.10(a)
“Change of Control Payment Date”   
 
4.10(a)
“Clearstream”   
 
1.1(a) of Appendix A
“Covenant Defeasance”   
 
8.03
“Coverage Debt”   
 
4.06(a)
“Defeasance”   
 
8.02(a)
“Definitive Notes Legend”   
 
2.2(e) of Appendix A
“Discharge”   
 
10.01(a)
“Distribution Compliance Period”   
 
1.1(a) of Appendix A
“ERISA Legend”   
 
2.2(e) of Appendix A
“Euroclear”   
 
1.1(a) of Appendix A
“Event of Default”   
 
6.01
“Excess Proceeds”   
 
4.11(c)
“Expiration Date”   
 
1.05(j)
“Global Note”   
 
2.1(b) of Appendix A
“Global Notes Legend”   
 
2.2(e) of Appendix A
“Guaranteed Obligation”   
 
11.01(a)
 
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Term
 
Defined in Section
     
“IAI”   
   
1.1(a) of Appendix A
“IAI Global Note”   
 
2.1(b) of Appendix A
“Note Register”   
 
2.03(a)
“Paying Agent”   
 
2.03(a)
“QIB”   
 
1.1(a) of Appendix A
“Registrar”   
 
2.03(a)
“Regulation S”   
 
1.1(a) of Appendix A
“Regulation S Global Note”   
 
2.1(b) of Appendix A
“Regulation S Notes”   
 
2.1(a) of Appendix A
“Restricted Notes Legend”   
 
2.2(e) of Appendix A
“Rule 144”   
 
1.1(a) of Appendix A
“Rule 144A”   
 
1.1(a) of Appendix A
“Rule 144A Global Note”   
 
2.1(b) of Appendix A
“Rule 144A Notes”   
 
2.1(a) of Appendix A
“Sale and Lease-Back Transaction”   
 
4.08(a)
“Successor Issuer”   
 
5.01(a)
“Termination Date”   
 
4.12(a)
“Successor Subsidiary Guarantor”   
 
5.01(c)
“Unrestricted Global Note”   
 
1.1(a) of Appendix A

  
Section 1.03 Rules of Construction .
 
                     Unless the context otherwise requires:

(1)              a term defined in Section 1.01 or 1.02 has the meaning assigned to it therein, and a term used herein that is defined in the Trust Indenture Act, either directly or by reference therein, shall have the meaning assigned to it therein;

(2)              an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;

(3)              “or” is not exclusive;

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

(5)              unless the context otherwise requires, any reference to an “Appendix,” “Article,” “Section,” “clause,” “Schedule” or “Exhibit” refers to an Appendix, Article, Section, clause, Schedule or Exhibit, as the case may be, of this Indenture;

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

(7)              “including” means including without limitation;
(8)              references to sections of, or rules under, the Securities Act, the Exchange Act or the Trust Indenture Act shall be deemed to include substitute, replacement or successor sections or rules adopted by the Commission from time to time;
 
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(9)              unless otherwise provided, references to agreements and other instruments shall be deemed to include all amendments and other modifications to such agreements or instruments, but only to the extent such amendments and other modifications are not prohibited by the terms of this Indenture; and

(10)              in the event that a transaction meets the criteria of more than one category of permitted transactions or listed exceptions, the Issuer may classify such transaction as it, in its sole discretion, determines.

Section 1.04 Incorporation by Reference of Trust Indenture Act .

Whenever this Indenture refers to a provision of the Trust Indenture Act as applicable to this Indenture, the provision is incorporated by reference in and made a part of this Indenture.

The following Trust Indenture Act terms used in this Indenture have the following meanings:

“ indenture securities ” means the Notes;

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

“ indenture to be qualified ” means this Indenture;

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

“ obligor ” on the Notes and the Guarantees means the Issuer and the Subsidiary Guarantors, respectively, and any successor obligor upon the Notes and the Guarantees, respectively.

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

Section 1.05 Acts of Holders .

(a)              Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing.  Except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments or record or both are delivered to the Trustee and, where it is hereby expressly required, to the Issuer and the Subsidiary Guarantors.  Proof of execution of any such instrument or of a writing appointing any such agent, or the holding by any Person of a Note, shall be sufficient for any purpose of this Indenture and (subject to Section 7.01) conclusive in favor of the Trustee, the Issuer and the Subsidiary Guarantors, if made in the manner provided in this Section 1.05.
 
(b)              The fact and date of the execution by any Person of any such instrument or writing may be proved (1) by the affidavit of a witness of such execution or by the certificate of any notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof or (2) in any other manner deemed reasonably sufficient by the Trustee.  Where such execution is by or on behalf of any legal entity other than an individual, such certificate or affidavit shall also constitute proof of the authority of the Person executing the same.  The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner that the Trustee deems sufficient.
 
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(c)              The ownership of Notes shall be proved by the Note Register.

(d)              Any request, demand, authorization, direction, notice, consent, waiver or other action by the Holder of any Note shall bind every future Holder of the same Note and the Holder of every Note issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof, in respect of any action taken, suffered or omitted by the Trustee, the Issuer or the Subsidiary Guarantors in reliance thereon, whether or not notation of such action is made upon such Note.

(e)              The Issuer may set a record date for purposes of determining the identity of Holders entitled to make, give or take any request, demand, authorization, direction, notice, consent, waiver or other action provided in this Indenture to be made, or to vote on or consent to any action authorized or permitted to be taken by Holders; provided that the Issuer may not set a record date for, and the provisions of this paragraph shall not apply with respect to, the giving or making of any notice, declaration, request or direction referred to in clause (f) below.  Unless otherwise specified, if not set by the Issuer prior to the first solicitation of a Holder made by any Person in respect of any such action, or in the case of any such vote, prior to such vote, any such record date shall be the later of 30 days prior to the first solicitation of such consent or vote or the date of the most recent list of Holders furnished to the Trustee prior to such solicitation or vote.  If any record date is set pursuant to this clause (e), the Holders on such record date, and only such Holders, shall be entitled to make, give or take such request, demand, authorization, direction, notice, consent, waiver or other action (including revocation of any action), whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder unless made, given or taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Notes, or each affected Holder, as applicable, on such record date.  Promptly after any record date is set pursuant to this paragraph, the Issuer, at its own expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Trustee in writing and to each Holder in the manner set forth in Section 12.02.

(f)              The Trustee may set any day as a record date for the purpose of determining the Holders entitled to join in the giving or making of (1) any notice of default under Section 6.01, (2) any declaration of acceleration referred to in Section 6.02, (3) any direction referred to in Section 6.05 or (4) any request to pursue a remedy as permitted in Section 6.06.  If any record date is set pursuant to this paragraph, the Holders on such record date, and no other Holders, shall be entitled to join in such notice, declaration, request or direction, whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder unless made, given or taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Notes or each affected Holder, as applicable, on such record date.  Promptly after any record date is set pursuant to this paragraph, the Trustee, at the Issuer’s expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Issuer and to each Holder in the manner set forth in Section 12.02.

(g)              Without limiting the foregoing, a Holder entitled to take any action hereunder with regard to any particular Note may do so with regard to all or any part of the principal amount of such Note or by one or more duly appointed agents, each of which may do so pursuant to such appointment with regard to all or any part of such principal amount.  Any notice given or action taken by a Holder or its agents with regard to different parts of such principal amount pursuant to this paragraph shall have the same effect as if given or taken by separate Holders of each such different part.

(h)              Without limiting the generality of the foregoing, a Holder, including a Depositary that is the Holder of a Global Note, may make, give or take, by a proxy or proxies duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other action provided in this Indenture to be made, given or taken by Holders, and a Depositary that is the Holder of a Global Note may provide its proxy or proxies to the beneficial owners of interests in any such Global Note through such Depositary’s standing instructions and customary practices.
 
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(i)              The Issuer may fix a record date for the purpose of determining the Persons who are beneficial owners of interests in any Global Note held by a Depositary entitled under the procedures of such Depositary, if any, to make, give or take, by a proxy or proxies duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other action provided in this Indenture to be made, given or taken by Holders; provided that if such a record date is fixed, only the beneficial owners of interests in such Global Note on such record date or their duly appointed proxy or proxies shall be entitled to make, give or take such request, demand, authorization, direction, notice, consent, waiver or other action, whether or not such beneficial owners remain beneficial owners of interests in such Global Note after such record date.  No such request, demand, authorization, direction, notice, consent, waiver or other action shall be effective hereunder unless made, given or taken on or prior to the applicable Expiration Date.

(j)              With respect to any record date set pursuant to this Section 1.05, the party hereto that sets such record date may designate any day as the “ Expiration Date ” and from time to time may change the Expiration Date to any earlier or later day; provided that no such change shall be effective unless notice of the proposed new Expiration Date is given to the other party hereto in writing, and to each Holder of Notes in the manner set forth in Section 12.02, on or prior to both the existing and the new Expiration Date.  If an Expiration Date is not designated with respect to any record date set pursuant to this Section 1.05, the party hereto which set such record date shall be deemed to have initially designated the 90th day after such record date as the Expiration Date with respect thereto, subject to its right to change the Expiration Date as provided in this clause (j).

ARTICLE 2

THE NOTES

Section 2.01 Form and Dating; Terms .

(a)              Provisions relating to the Initial Notes, Additional Notes, Exchange Notes and any other Notes issued under this Indenture are set forth in Appendix A, which is hereby incorporated in and expressly made a part of this Indenture.  The Notes and the Trustee’s certificate of authentication shall each be substantially in the form of Exhibit A hereto, which is hereby incorporated in and expressly made a part of this Indenture.  The Notes may have notations, legends or endorsements required by law, rules or agreements with national securities exchanges to which the Issuer or any Subsidiary Guarantor is subject, if any, or usage ( provided that any such notation, legend or endorsement is in a form acceptable to the Issuer).  Each Note shall be dated the date of its authentication.  The Notes shall be in denominations of $2,000 and integral multiples of $1,000 in excess thereof.

(b)              The aggregate principal amount of Notes that may be authenticated and delivered under this Indenture is unlimited.

The terms and provisions contained in the Notes shall constitute, and are hereby expressly made, a part of this Indenture, and the Issuer, the Subsidiary Guarantors and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby.  However, to the extent any provision of any Note conflicts with the express provisions of this Indenture, the provisions of this Indenture shall govern and be controlling.
 
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The Notes shall be subject to repurchase by the Issuer pursuant to an Asset Sale Offer as provided in Section 4.11, a Change of Control Offer as provided in Section 4.10, and otherwise as not prohibited by this Indenture.  The Notes shall not be redeemable, other than as provided in Article 3.

Additional Notes ranking pari passu with the Initial Notes may be created and issued from time to time by the Issuer without notice to or consent of the Holders and shall be consolidated with and form a single class with the Initial Notes and the Exchange Notes and shall have the same terms as to status, redemption or otherwise (other than issue date, issue price and, if applicable, the first Interest Payment Date and the first date from which interest will accrue) as the Initial Notes; provided that if any Additional Notes are not fungible with the Initial Notes for U.S. federal income tax purposes, such Additional Notes will have a separate CUSIP number and ISIN from the Initial Notes; provided, further , that the Issuer’s ability to issue Additional Notes shall be subject to the Issuer’s compliance with Section 4.06.  Any Additional Notes shall be issued with the benefit of an indenture supplemental to this Indenture.

Section 2.02 Execution and Authentication .

(a)              At least one Officer shall execute the Notes on behalf of the Issuer by manual or facsimile signature.  If an Officer whose signature is on a Note no longer holds that office at the time a Note is authenticated, the Note shall nevertheless be valid.

(b)              A Note shall not be entitled to any benefit under this Indenture or be valid or obligatory for any purpose until authenticated substantially in the form of Exhibit A attached hereto by the manual signature of an authorized signatory of the Trustee.  The signature shall be conclusive evidence that the Note has been duly authenticated and delivered under this Indenture.

(c)              On the Issue Date, the Trustee shall, upon receipt of a written order of the Issuer signed by an Officer (an “ Authentication Order ”), an Officers’ Certificate and Opinion of Counsel, authenticate and deliver the Initial Notes.  In addition, at any time and from time to time, the Trustee shall, upon receipt of an Authentication Order, Officers’ Certificate and Opinion of Counsel, authenticate and deliver any Additional Notes and Exchange Notes in an aggregate principal amount specified in such Authentication Order for such Additional Notes or Exchange Notes issued hereunder.

(d)              The Trustee may appoint an authenticating agent acceptable to the Issuer to authenticate Notes.  An authenticating agent may authenticate Notes whenever the Trustee may do so.  Each reference in this Indenture to authentication by the Trustee includes authentication by such agent.

(e)              The Trustee shall authenticate and make available for delivery upon a written order of the Issuer signed by one Officer of the Issuer (a) Initial Notes for original issue on the Issue Date in an aggregate principal amount of $720,000,000, (b) subject to the terms of this Indenture, Additional Notes, (c) the Exchange Notes for issue only in an Exchange Offer and pursuant to the Registration Rights Agreement and for a like principal amount of Initial Notes exchanged pursuant thereto and (d) any other Unrestricted Global Notes issued in exchange for any of the foregoing in accordance with this Indenture.  Such order shall specify the amount of the Notes to be authenticated, the date on which the original issue of Notes is to be authenticated and whether the Notes are to be Initial Notes, Additional Notes, Exchange Notes or other Unrestricted Global Notes.

Section 2.03 Registrar and Paying Agent .

(a)              The Issuer shall maintain an office or agency where Notes may be presented for registration of transfer or for exchange (“ Registrar ”) and at least one office or agency where Notes may be presented for payment (“ Paying Agent ”).  The Registrar shall keep a register of the Notes (“ Note Register ”) and of their transfer and exchange.  The Issuer may appoint one or more co-registrars and one or more additional paying agents.  The term “ Registrar ” includes any co-registrar, and the term “ Paying Agent ” includes any additional paying agent.  The Issuer may change any Paying Agent or Registrar without prior notice to any Holder.  The Issuer shall notify the Trustee in writing of the name and address of any Agent not a party to this Indenture.  If the Issuer fails to appoint or maintain another entity as Registrar or Paying Agent, the Trustee shall act as such.  The Issuer or any of its Subsidiaries may act as Paying Agent or Registrar.
 
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(b)              The Issuer initially appoints The Depository Trust Company to act as Depositary with respect to the Global Notes.  The Issuer initially appoints the Trustee to act as Paying Agent and Registrar for the Notes and to act as Custodian with respect to the Global Notes. The Trustee shall have no liability or responsibility for the action or inaction of the Depositary or any other depositary or clearing system.

Section 2.04 Paying Agent to Hold Money in Trust .

The Issuer shall, no later than 11:00 a.m. (New York City time) on each due date for the payment of principal, premium, if any, and interest on any of the Notes, deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be held in trust for the Holders entitled to the same, and (unless such Paying Agent is the Trustee) the Issuer shall promptly notify the Trustee of its action or failure so to act.  The Issuer shall require each Paying Agent other than the Trustee to agree in writing that such Paying Agent shall hold in trust for the benefit of Holders or the Trustee all money held by such Paying Agent for the payment of principal, premium, if any, and interest on the Notes, and shall notify the Trustee of any default by the Issuer in making any such payment.  While any such default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee.  The Issuer at any time may require a Paying Agent to pay all money held by it to the Trustee.  Upon payment over to the Trustee, a Paying Agent shall have no further liability for the money.  If the Issuer or a Subsidiary acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders all money held by it as Paying Agent.  Upon any bankruptcy or reorganization proceedings relating to the Issuer, the Trustee shall serve as Paying Agent for the Notes.

Section 2.05 Holder Lists .

The Registrar shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of all Holders and shall otherwise comply with Trust Indenture Act Section 312(b).  If the Trustee is not the Registrar, the Issuer shall furnish to the Trustee at least two Business Days before each Interest Payment Date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of the Holders, and the Issuer shall otherwise comply with Trust Indenture Act Section 312(a).
 
Section 2.06 Transfer and Exchange .

(a)              The Notes shall be issued in registered form and shall be transferable only upon the surrender of a Note for registration of transfer and in compliance with Appendix A.

(b)              To permit registrations of transfers and exchanges, the Issuer shall execute and the Trustee shall authenticate Global Notes and Definitive Notes upon receipt of an Authentication Order and any additional deliverables required under Section 2.02 or at the Registrar’s request.

(c)              No service charge shall be imposed in connection with any registration of transfer or exchange (other than pursuant to Section 2.07), but the Holders shall be required to pay any transfer tax or similar governmental charge payable in connection therewith (other than any such transfer taxes or similar governmental charge payable upon exchange or transfer pursuant to Sections 2.10, 3.06, 3.09, 4.10, 4.11 and 9.05).
 
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(d)              All Global Notes and Definitive Notes issued upon any registration of transfer or exchange of Global Notes or Definitive Notes shall be the valid obligations of the Issuer, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Global Notes or Definitive Notes surrendered upon such registration of transfer or exchange.

(e)              Neither the Issuer nor the Registrar shall be required (1) to issue, to register the transfer of or to exchange any Note during a period beginning at the opening of business 15 days before the day of any selection of Notes for redemption under Section 3.02 and ending at the close of business on the day of selection, (2) to register the transfer of or to exchange any Note so selected for redemption, or tendered for repurchase (and not withdrawn) in connection with a Change of Control Offer or an Asset Sale Offer, in whole or in part, except the unredeemed or unpurchased portion of any Note being redeemed or repurchased in part or (3) to register the transfer of or to exchange any Note between a Record Date and the next succeeding Interest Payment Date.

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

(g)              Upon surrender for registration of transfer of any Note at the office or agency of the Issuer designated pursuant to Section 4.02, the Issuer shall execute, and the Trustee shall authenticate and mail, in the name of the designated transferee or transferees, one or more replacement Notes of any authorized denomination or denominations of a like aggregate principal amount.

(h)              At the option of the Holder, Notes may be exchanged for other Notes of any authorized denomination or denominations of a like aggregate principal amount upon surrender of the Notes to be exchanged at such office or agency.  Whenever any Global Notes or Definitive Notes are so surrendered for exchange, the Issuer shall execute, and the Trustee shall authenticate and mail, the replacement Global Notes and Definitive Notes which the Holder making the exchange is entitled to in accordance with the provisions of Appendix A.

(i)              All certifications, certificates and Opinions of Counsel required to be submitted to the Registrar or Trustee pursuant to this Section 2.06 to effect a registration of transfer or exchange may be submitted by mail or by facsimile or electronic transmission.
 
Section 2.07 Replacement Notes .

If a mutilated Note is surrendered to the Trustee or if a Holder claims that its Note has been lost, destroyed or wrongfully taken and the Trustee receives evidence to its satisfaction of the ownership and loss, destruction or theft of such Note, the Issuer shall issue and the Trustee, upon receipt of an Authentication Order, shall authenticate a replacement Note if the Trustee’s requirements are otherwise met.  If required by the Trustee or the Issuer, an indemnity bond must be provided by the Holder that is sufficient in the judgment of the Trustee and the Issuer to protect the Issuer, the Trustee, any Agent and any authenticating agent from any loss that any of them may suffer if a Note is replaced.  The Issuer may charge the Holder for the expenses of the Issuer and the Trustee in replacing a Note.  Every replacement Note is a contractual obligation of the Issuer and shall be entitled to all of the benefits of this Indenture equally and proportionately with all other Notes duly issued hereunder.  Notwithstanding the foregoing provisions of this Section 2.07, in case any mutilated, lost, destroyed or wrongfully taken Note has become or is about to become due and payable, the Issuer in its discretion may, instead of issuing a new Note, pay such Note.
 
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Section 2.08 Outstanding Notes .

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

(b)              If a Note is replaced pursuant to Section 2.07, it ceases to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Note is held by a protected purchaser, as such term is defined in Section 8-303 of the Uniform Commercial Code in effect in the State of New York.

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

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

Section 2.09 Treasury Notes .

In determining whether the Holders of the requisite principal amount of Notes have concurred in any direction, waiver or consent, Notes beneficially owned by the Issuer, or by any affiliate of the Issuer, shall be considered as though not outstanding, except that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent, only Notes that a Responsible Officer of the Trustee actually knows are so owned shall be so disregarded.  Notes so owned which have been pledged in good faith shall not be disregarded if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right to deliver any such direction, waiver or consent with respect to the Notes and that the pledgee is not the Issuer or any obligor upon the Notes or any affiliate of the Issuer or of such other obligor.

Section 2.10 Temporary Notes .

Until definitive Notes are ready for delivery, the Issuer may prepare and the Trustee, upon receipt of an Authentication Order, shall authenticate temporary Notes.  Temporary Notes shall be substantially in the form of definitive Notes but may have variations that the Issuer considers appropriate for temporary Notes and as shall be reasonably acceptable to the Trustee.  Without unreasonable delay, the Issuer shall prepare and the Trustee shall authenticate definitive Notes in exchange for temporary Notes.  Holders and beneficial holders, as the case may be, of temporary Notes shall be entitled to all of the benefits accorded to Holders, or beneficial holders, respectively, of Notes under this Indenture.

Section 2.11 Cancellation .

The Issuer at any time may deliver Notes to the Trustee for cancellation.  The Registrar and Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of transfer, exchange or payment.  The Trustee or, at the direction of the Trustee, the Registrar or the Paying Agent and no one else shall cancel all Notes surrendered for registration of transfer, exchange, payment, replacement or cancellation and shall destroy cancelled Notes in accordance with its customary procedures (subject to the record retention requirement of the Exchange Act).  Certification of the destruction of all cancelled Notes shall, upon the written request of the Issuer, be delivered to the Issuer.  The Issuer may not issue new Notes to replace Notes that it has paid or that have been delivered to the Trustee for cancellation.
 
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Section 2.12
Defaulted Interest .

(a)              If the Issuer defaults in a payment of interest on the Notes, it shall pay the defaulted interest in any lawful manner plus, to the extent lawful, interest payable on the defaulted interest, to the Persons who are Holders on a subsequent special record date, in each case at the rate provided in the Notes and in Section 4.01.  The Issuer shall notify the Trustee in writing of the amount of defaulted interest proposed to be paid on each Note and the date of the proposed payment, and at the same time the Issuer shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such defaulted interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such defaulted interest as provided in this Section 2.12.  The Trustee shall fix or cause to be fixed each such special record date and payment date; provided that no such special record date shall be less than 15 days prior to the related payment date for such defaulted interest.  The Trustee shall promptly notify the Issuer of such special record date.  At least 15 days before the special record date, the Issuer (or, upon the written request of the Issuer, the Trustee in the name and at the expense of the Issuer) shall mail or deliver by electronic transmission in accordance with the applicable procedures of the Depositary, or cause to be mailed or delivered by electronic transmission in accordance with the applicable procedures of the Depositary to each Holder a notice that states the special record date, the related payment date and the amount of such interest to be paid.

(b)              Subject to the foregoing provisions of this Section 2.12 and for greater certainty, each Note delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Note shall carry the rights to interest accrued and unpaid, and to accrue interest, which were carried by such other Note.

Section 2.13 CUSIP and ISIN Numbers

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

ARTICLE 3
REDEMPTION

Section 3.01 Notices to Trustee .

If the Issuer elects to redeem Notes pursuant to Section 3.07, it shall furnish to the Trustee, at least five Business Days before notice of redemption is required to be mailed or caused to be mailed to Holders pursuant to Section 3.03 (unless a shorter notice shall be agreed to by the Trustee) but not more than 60 days before a redemption date, an Officers’ Certificate setting forth (1) the paragraph or subparagraph of such Note or Section of this Indenture pursuant to which the redemption shall occur, (2) the redemption date, (3) the principal amount of the Notes to be redeemed, identified by CUSIP, and (4) the redemption price, if then ascertainable.
 
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Section 3.02 Selection of Notes to Be Redeemed or Purchased .

(a)              If less than all of the Notes are to be redeemed pursuant to Section 3.07 or purchased in an Offer to Purchase at any time, the Trustee shall select the Notes to be redeemed or purchased (1) if the Notes are listed on any national securities exchange, in compliance with the requirements of the principal national securities exchange on which the Notes are listed or (2) if the Notes are not so listed, on a pro rata basis or by such other method as the Trustee deems to be fair and appropriate in accordance with the applicable procedures of the Depositary.

(b)              The Trustee shall promptly notify the Issuer in writing of the Notes selected for redemption or purchase and, in the case of any Note selected for partial redemption or purchase, the principal amount thereof to be redeemed or purchased.  Notes and portions of Notes selected shall be in amounts of $1,000 or integral multiples of $1,000; provided that no Notes of $2,000 in principal amount or less shall be redeemed in part.  Except as provided in the preceding sentence, provisions of this Indenture that apply to Notes called for redemption or purchase also apply to portions of Notes called for redemption or purchase.

(c)              After the redemption date or purchase date, upon surrender of a Note to be redeemed or purchased in part only, a new Note or Notes in principal amount equal to the unredeemed or unpurchased portion of the original Note, representing the same Indebtedness to the extent not redeemed or not purchased, shall be issued in the name of the Holder of the Notes upon cancellation of the original Note (or appropriate book entries shall be made to reflect such partial redemption).

Section 3.03 Notice of Redemption .

(a)              Subject to Section 3.09, the Issuer shall mail or deliver by electronic transmission in accordance with the applicable procedures of the Depositary, or cause to be mailed (or delivered by electronic transmission in accordance with the applicable procedures of the Depositary) notices of redemption of Notes not less than 30 days but not more than 60 days before the redemption date to each Holder whose Notes are to be redeemed pursuant to this Article at such Holder’s registered address or otherwise in accordance with the applicable procedures of the Depositary, except that redemption notices may be mailed more than 60 days prior to a redemption date if the notice is issued in connection with Article 8 or Article 10.

(b)              The notice shall identify the Notes to be redeemed (including CUSIP and ISIN number, if applicable) and shall state:

(1)              the redemption date;

(2)              the redemption price, including the portion thereof representing any accrued and unpaid interest; provided that in connection with a redemption under Section 3.07(a), the notice need not set forth the redemption price but only the manner of calculation thereof;

(3)              if any Note is to be redeemed in part only, the portion of the principal amount of that Note that is to be redeemed;

(4)              the name and address of the Paying Agent;
 
 
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(5)              that Notes called for redemption must be surrendered to the Paying Agent to collect the redemption price;

(6)              that, unless the Issuer defaults in making such redemption payment or the Paying Agent is prohibited from making such payment pursuant to the terms of this Indenture, interest on Notes called for redemption ceases to accrue on and after the redemption date;

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

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

(9)              if applicable, any conditions precedent to the Issuer’s obligation to consummate such redemption.

(c)              At the Issuer’s request, the Trustee shall give the notice of redemption in the Issuer’s name and at the Issuer’s expense; provided that the Issuer shall have delivered to the Trustee, at least five Business Days before notice of redemption is required to be sent or caused to be sent to Holders pursuant to this Section 3.03 (unless a shorter notice shall be agreed to by the Trustee), an Officers’ Certificate requesting that the Trustee give such notice and setting forth the information to be stated in such notice as provided in Section 3.03(b).

Section 3.04 Effect of Notice of Redemption .

Once notice of redemption is delivered in accordance with Section 3.03, Notes called for redemption become irrevocably due and payable on the redemption date at the redemption price (except as provided for in Section 3.07(c)).  The notice, if mailed or delivered by electronic transmission in a manner herein provided, shall be conclusively presumed to have been given, whether or not the Holder receives such notice.  In any case, failure to give such notice or any defect in the notice to the Holder of any Note designated for redemption in whole or in part shall not affect the validity of the proceedings for the redemption of any other Note.  Subject to Section 3.05, upon payment of the redemption price on the redemption date, interest ceases to accrue on Notes or portions of Notes called for redemption.

Section 3.05 Deposit of Redemption or Purchase Price .

(a)              No later than 11:00 a.m. (New York City time) on the redemption or purchase date (or such later time on such date to which the Trustee may reasonably agree), the Issuer shall deposit with the Trustee or with the Paying Agent money sufficient to pay the redemption or purchase price of and accrued and unpaid interest on all Notes to be redeemed or purchased on that date.  The Paying Agent shall promptly deliver to each Holder whose Notes are to be redeemed or repurchased the applicable redemption or purchase price thereof and accrued and unpaid interest thereon.  The Trustee or the Paying Agent shall promptly return to the Issuer any money deposited with the Trustee or the Paying Agent by the Issuer in excess of the amounts necessary to pay the redemption or purchase price of, and accrued and unpaid interest on, all Notes to be redeemed or purchased.

(b)              If the Issuer complies with the provisions of Section 3.05(a), on and after the redemption or purchase date, interest shall cease to accrue on the Notes or the portions of Notes called for redemption or purchase.  If a Note is redeemed or purchased on or after a Record Date but on or prior to the related Interest Payment Date, then any accrued and unpaid interest to the redemption or purchase date in respect of such Note will be paid on such redemption or purchase date to the Person in whose name such Note is registered at the close of business on such Record Date.  If any Note called for redemption or purchase shall not be so paid upon surrender for redemption or purchase because of the failure of the Issuer to comply with Section 3.05(a), interest shall be paid on the unpaid principal, from the redemption or purchase date until such principal is paid, and, to the extent lawful, on any interest accrued to the redemption or purchase date not paid on such unpaid principal, in each case at the rate provided in the Notes and in Section 4.01.
 
 
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Section 3.06 Notes Redeemed or Purchased in Part .

Upon surrender of a Note that is redeemed or purchased in part, the Issuer shall issue and, upon receipt of an Authentication Order, the Trustee shall promptly authenticate and mail to the Holder (or cause to be transferred by book entry) at the expense of the Issuer a new Note equal in principal amount to the unredeemed or unpurchased portion of the Note surrendered representing the same Indebtedness to the extent not redeemed or purchased; provided that each new Note shall be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof.  It is understood that, notwithstanding anything in this Indenture to the contrary, only an Authentication Order and not an Opinion of Counsel or Officers’ Certificate is required for the Trustee to authenticate a new Note in accordance with this Section 3.06.

Section 3.07 Optional Redemption .

(a)              On and after October 15, 2020, the Issuer may, on any one or more occasions, redeem the Notes, in whole or in part, upon notice pursuant to Section 3.03 at the redemption prices (expressed as a percentage of principal amount of the Notes to be redeemed) set forth below, plus accrued and unpaid interest thereon, if any, to the applicable redemption date, if redeemed during the 12-month period beginning on October 15 of each of the years indicated below:


Year
 
Percentage
2020   
 
105.000%
2021   
 
103.333%
2022   
 
101.667%
2023 and thereafter   
 
100.000%
     

(b)              Any redemption pursuant to this Section 3.07 shall be made pursuant to the provisions of Sections 3.01 through 3.06.

(c)              Any redemption notice in connection with this Section 3.07 may, at the Issuer’s discretion, be subject to one or more conditions precedent, including completion of any transaction.

(d)              The Notes shall not be redeemable prior to October 15, 2020.

Section 3.08 Mandatory Redemption .

The Issuer will not be required to make mandatory redemption or sinking fund payments with respect to the Notes.

Section 3.09 Offers to Repurchase by Application of Excess Proceeds .

(a)              In the event that, pursuant to Section 4.11, the Issuer is required to commence an Asset Sale Offer, the Issuer will follow the procedures specified below.

(b)              The Asset Sale Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “ Asset Sale Offer Period ”).  No later than five Business Days after the termination of the Asset Sale Offer Period (the “ Asset Sale Purchase Date ”), the Issuer will apply all Excess Proceeds to the purchase of the maximum aggregate principal amount of Notes and, if applicable, other Debt (on a pro rata basis, if applicable) required to be purchased pursuant to Section 4.11 (the “ Asset Sale Offer Amount ”), or, if less than the Asset Sale Offer Amount of Notes (and, if applicable, other Debt) has been so validly tendered, all Notes (and, if applicable, other Debt) validly tendered in response to the Asset Sale Offer.  Payment for any Notes so purchased will be made in the same manner as interest payments on the Notes are made.
 
 
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(c)              If the Asset Sale Purchase Date is on or after a Record Date and on or before the related Interest Payment Date, any accrued and unpaid interest up to but excluding the Asset Sale Purchase Date, shall be paid to the Person in whose name a Note is registered at the close of business on such Record Date.

(d)              Upon the commencement of an Asset Sale Offer, the Issuer shall mail a notice to each of the Holders or otherwise deliver such notice in accordance with the applicable procedures of the Depositary, with a copy to the Trustee.  The notice shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer.  The Asset Sale Offer shall be made to all Holders and, if required, all holders of other Debt.  The notice, which shall govern the terms of the Asset Sale Offer, shall state:

(1)              that an Asset Sale Offer is being made pursuant to this Section 3.09 and Section 4.11 and the expiration time of the Asset Sale Period;

(2)              the Asset Sale Offer Amount, the purchase price, including the portion thereof representing any accrued and unpaid interest, and the Asset Sale Purchase Date;

(3)              that Notes must be tendered in integral multiples of $1,000 (subject to clause (8) below), and any Note not properly tendered will remain outstanding and will continue to accrue interest;

(4)              that, unless the Issuer defaults in making the payment, any Note accepted for payment pursuant to the Asset Sale Offer will cease to accrue interest on and after the Asset Sale Purchase Date;

(5)              that Holders electing to have a Note purchased pursuant to any Asset Sale Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” attached to such Note completed, to the Paying Agent specified in the notice at the address specified in the notice prior to the close of business on the third Business Day preceding the Asset Sale Purchase Date;

(6)              that Holders shall be entitled to withdraw their election if the Issuer, the Depositary or the Paying Agent, as the case may be, receives at the address specified in the notice, not later than the expiration of the Asset Sale Offer Period, a telegram, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder tendered for purchase and a statement that such Holder is withdrawing its tendered Notes and its election to have such Note purchased;

(7)              that, if the aggregate principal amount of Notes and other Debt surrendered by the holders thereof exceeds the Asset Sale Offer Amount, then the Notes and other Debt will be purchased on a pro rata basis based on the aggregate accreted value or principal amount, as applicable, of the Notes tendered and such other Debt tendered, and the selection of the Notes or such other Debt for purchase shall be made by the Trustee on a pro rata basis among all such Notes tendered (subject to any applicable procedures of the Depositary), although no Note having a principal amount of $2,000 shall be purchased in part;
 
 
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(8)              that Holders who se Notes were purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (the unpurchased portion of the Notes must be equal to $2,000 or an integral multiple of $1,000 in excess thereof); and

(9)              the other procedures, as determined by the Issuer, consistent with this Section 3.09 that a Holder must follow.

(e)              On or before the Asset Sale Purchase Date, the Issuer will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary or as otherwise provided in Section 4.11(c), the Asset Sale Offer Amount of Notes and other Debt or portions thereof validly tendered and not properly withdrawn pursuant to the Asset Sale Offer, or, if less than the Asset Sale Offer Amount has been validly tendered and not properly withdrawn, all Notes and other Debt so tendered, in the case of the Notes, in whole number multiples of $1,000; provided that if, following repurchase of a portion of a Note, the remaining principal amount of such Note outstanding immediately after such repurchase would be less than $2,000, then the portion of such Note so repurchased shall be reduced so that the remaining principal amount of such Note outstanding immediately after such repurchase is $2,000.  The Issuer will deliver, or cause to be delivered, to the Trustee the Notes so accepted and an Officers’ Certificate stating the aggregate principal amount of Notes or portions thereof so accepted and that such Notes or portions thereof were accepted for payment by the Issuer in accordance with the terms of this Section 3.09.

(f)              The Paying Agent or the Issuer, as the case may be, will promptly, but in no event later than five Business Days after termination of the Asset Sale Offer Period, mail or deliver to each tendering Holder or holder or lender of other Debt, as the case may be, an amount equal to the purchase price of the Notes or the other Debt so validly tendered and not properly withdrawn by such holder or lender, as the case may be, and accepted by the Issuer for purchase, and the Issuer will promptly issue a new Note, and the Trustee, upon receipt of an Authentication Order, will authenticate and mail or deliver (or cause to be transferred by book-entry) such new Note to such Holder  in a principal amount equal to any unpurchased portion of the Note surrendered; provided that each such new Note will be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof.  Any Note not so accepted will be promptly mailed or delivered by the Issuer to the Holder thereof.

(g)              The Issuer will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws or regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of Notes as a result of an Asset Sale Offer.  To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Indenture by virtue of any conflict.

Other than as specifically provided in this Section 3.09 or Section 4.11, any purchase pursuant to this Section 3.09 shall be made pursuant to the applicable provisions of Sections 3.01 through 3.06.
 
 
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ARTICLE 4

COVENANTS

Section 4.01 Payment of Notes .

(a)              The Issuer will pay, or cause to be paid, the principal, premium, if any, and interest on the Notes on the dates and in the manner provided in the Notes.  Principal, premium, if any, and interest shall be considered paid on the date due if the Paying Agent, if other than the Issuer or a Subsidiary, holds as of 11:00 a.m. (New York City) time, on the due date money deposited by the Issuer in immediately available funds and designated for and sufficient to pay the principal, premium, if any, and interest then due.

(b)              The Issuer shall pay all Additional Interest, if any, in the same manner on the dates and in the amounts set forth in the Registration Rights Agreement.  In the event the Issuer is required to pay Additional Interest, the Issuer shall provide written notice to the Trustee of the Issuer’s obligation to pay Additional Interest no later than 15 days prior to the next Interest Payment Date, which notice shall set forth the amount of the Additional Interest to be paid by the Issuer.

(c)              The Issuer shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal and premium, if any, at the rate equal to the then applicable interest rate on the Notes to the extent lawful; it shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest (without regard to any applicable grace period) at the same rate to the extent lawful.

Section 4.02 Maintenance of Office or Agency .

The Issuer shall maintain an office or agency (which may be an office of the Trustee or an affiliate of the Trustee, Registrar or co-registrar) where Notes may be surrendered for registration of transfer or for exchange and where notices and demands to or upon the Issuer and the Subsidiary Guarantors in respect of the Notes and this Indenture may be served.  The Issuer shall give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency.  If at any time the Issuer shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands  (but not service of process) may be made or served at the Corporate Trust Office.

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

The Issuer hereby designates the Corporate Trust Office as one such office or agency of the Issuer in accordance with Section 2.03.

Section 4.03 Provision of Financial Information .

Whether or not required by the Commission, so long as any Notes are outstanding, the Issuer will furnish to the Holders, or file electronically with the Commission through the Commission’s Electronic Data Gathering, Analysis and Retrieval System (or any successor system), within the time periods specified in the Commission’s rules and regulations:

(1) all quarterly and annual financial information that would be required to be contained in a filing by the Issuer with the Commission on Forms 10-Q and 10-K if the Issuer were required to file such Forms, including a “Management’s discussion and analysis of financial condition and results of operations” and, with respect to the annual information only, a report on the annual financial statements by the Issuer’s certified independent accountants; and
 
 
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(2) all current reports that would be required to be filed by the Issuer with the Commission on Form 8-K if the Issuer were required to file such reports.
 
In addition, whether or not required by the Commission, the Issuer will file a copy of all of the information and reports referred to in clauses (1) and (2) above with the Commission for public availability within the time periods specified in the Commission’s rules and regulations (unless the Commission will not accept such a filing) and make such information available to prospective investors. In addition, the Issuer has agreed that, for so long as any Notes remain outstanding, it will furnish to the Holders of such Notes and to prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.

Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates). The Trustee shall have no responsibility or liability for the filing, content or timeliness of any such report, information or document other than the report of the Trustee specifically required hereunder.

Section 4.04 Compliance Certificate .
(a)              The Issuer will deliver to the Trustee, within 120 days after the end of each fiscal year ending after the Issue Date, a certificate from the principal executive officer, principal financial officer or principal accounting officer stating that a review of the activities of the Issuer and its Restricted Subsidiaries during the preceding fiscal year has been made under the supervision of the signing Officer with a view to determining whether the Issuer and each Subsidiary Guarantor have kept, observed, performed and fulfilled their obligations under this Indenture, and further stating, as to such Officer signing such certificate, that to the best of his or her knowledge, the Issuer and each Subsidiary Guarantor have kept, observed, performed and fulfilled each and every condition and covenant contained in this Indenture and is not in default in the performance or observance of any of the terms, provisions, covenants and conditions of this Indenture (or, if a Default shall have occurred, describing all such Defaults of which he or she may have knowledge and what action the Issuer and each Subsidiary Guarantor are taking or propose to take with respect thereto).
(b)              When any Default has occurred and is continuing under this Indenture, the Issuer will promptly send to the Trustee an Officers’ Certificate specifying such event, its status and what action the Issuer is taking or proposes to take with respect thereof.
Section 4.05 Limitation on Restricted Payments .
(a)              The Issuer will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, make any Restricted Payment unless, at the time of and after giving effect to the proposed Restricted Payment:
(i)              no Default shall have occurred and be continuing or will occur as a consequence thereof;
 
 
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(ii)              after giving effect to such Restricted Payment on a pro forma basis, the Issuer would be permitted to incur at least $1.00 of Coverage Debt under Section 4.06(a); and

(iii)              after giving effect to such Restricted Payment on a pro forma basis, the aggregate amount of all Restricted Payments made after the Issue Date (excluding (x) Restricted Payments permitted by clauses (2) through (8) of Section 4.05(b) and (y) Restricted Payments permitted by clause (9) of Section 4.05(b) to the extent that the amount available for Restricted Payments under this clause (iii) would be reduced to less than zero as a result of payments made under such clause (9)), shall not exceed the sum (without duplication) of

(A)              50% of the Consolidated Net Income (or, if Consolidated Net Income shall be a deficit, minus 100% of such deficit) of the Issuer accrued on a cumulative basis during the period (taken as one accounting period) from the beginning of the fiscal quarter during which the Issue Date occurs and ending on the last day of the fiscal quarter immediately preceding the date of such proposed Restricted Payment, plus

(B)              100% of the aggregate net proceeds (including the fair market value of property other than cash as determined by the Issuer in good faith) received by the Issuer subsequent to the initial issuance of the Notes either (i) as a contribution to its common equity capital or (ii) from the issuance and sale (other than to a Subsidiary) of its Qualified Capital Interests, including Qualified Capital Interests issued upon the conversion of Debt, Redeemable Capital Interests or preferred stock of the Issuer, and from the exercise of options, warrants or other rights to purchase such Qualified Capital Interests (other than, in each case, Capital Stock or Debt sold to a Subsidiary of the Issuer and other than Excluded Contributions), plus

(C)              to the extent that any Investment (other than Permitted Investments or Investments in Unrestricted Subsidiaries) that was made on or after the Issue Date is sold for cash or otherwise disposed of, liquidated, redeemed, repurchased or repaid for cash or other assets, or to the extent that the Issuer otherwise realizes any proceeds on the sale of such Investment or proceeds representing the return of capital on such Investment, the lesser of (i) the initial amount of such Investment, or (ii) to the extent not otherwise included in the calculation of Consolidated Net Income of the Issuer for such period, the net cash return of capital or net fair market value of return of capital as determined by the Issuer in good faith with respect to such Investment, less the cost of any such disposition or liquidation, plus

(D)              to the extent that any Unrestricted Subsidiary of the Issuer designated as such on or after the Issue Date is redesignated as a Restricted Subsidiary, the lesser of (i) the fair market value of the Issuer’s Investment in such Subsidiary as of the date of such redesignation as determined by the Issuer in good faith or (ii) such fair market value as of the date on which such Subsidiary was originally designated as an Unrestricted Subsidiary, plus

(E)              $150.0 million.

(b)              The provisions of Section 4.05(a) will not prohibit:

(1)              the payment of any dividend on Capital Stock in the Issuer or a Restricted Subsidiary within 60 days after declaration thereof if at the declaration date such payment was permitted by the provisions of Section 4.05;
 
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(2)              the purchase, repurchase, redemption, defeasance or other acquisition or retirement of any Qualified Capital Interests of the Issuer by conversion into, or by or in exchange for, Qualified Capital Interests, or out of net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Issuer) of other Qualified Capital Interests of the Issuer;

(3)              the redemption, defeasance, repurchase or acquisition or retirement for value of any Debt of the Issuer or a Subsidiary Guarantor that is subordinate in right of payment to the Notes or the applicable Guarantee out of the net cash proceeds of a substantially concurrent issue and sale (other than to a Subsidiary of the Issuer) of (x) new subordinated Debt of the Issuer or such Subsidiary Guarantor, as the case may be, incurred in accordance with this Indenture or (y) of Qualified Capital Interests of the Issuer;

(4)              the purchase, redemption, retirement or other acquisition for value of Capital Stock of the Issuer held by employees or former employees of the Issuer or any Restricted Subsidiary (or their estates or beneficiaries under their estates) upon death, disability, retirement or termination of employment or alteration of employment status or pursuant to the terms of any agreement under which such Capital Stock was issued; provided, however , that the aggregate cash consideration paid for such purchase, redemption, retirement or other acquisition of such Capital Stock does not exceed $5.0 million in any calendar year; provided further, however , that any unused amounts in any calendar year may be carried forward to one or more future periods subject to a maximum aggregate amount of repurchases made pursuant to this clause (iv) not to exceed $10.0 million in any calendar year; provided, however , that such amount in any calendar year may be increased by an amount not to exceed (A) the cash proceeds received by the Issuer or any of its Restricted Subsidiaries from the sale of Qualified Capital Interests of the Issuer to employees of the Issuer and its Restricted Subsidiaries that occurs after the Issue Date; provided, however , that the amount of such cash proceeds utilized for any such repurchase, retirement, other acquisition or dividend will not increase the amount available for Restricted Payments under clause (iii) of Section 4.05(a); plus (B) the cash proceeds of key man life insurance policies received by the Issuer and its Restricted Subsidiaries after the Issue Date ( provided, however , that the Issuer may elect to apply all or any portion of the aggregate increase contemplated by the proviso of this clause (4) in any calendar year);

(5)              repurchase of Capital Stock deemed to occur upon the exercise of stock options, warrants or other convertible or exchangeable securities;

(6)              cash payment, in lieu of issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for the Capital Stock of the Issuer or a Restricted Subsidiary;

(7)              the declaration and payment of dividends to holders of any class or series of Redeemable Capital Interests of the Issuer or any Restricted Subsidiary issued or incurred in compliance with Section 4.06;

(8)              upon the occurrence of a Change of Control or an Asset Sale, the defeasance, redemption, repurchase or other acquisition of any subordinated Debt pursuant to provisions substantially similar to those described under Section 4.10 and Section 4.11 at a purchase price not greater than 101% of the principal amount thereof (in the case of a Change of Control) or at a percentage of the principal amount thereof not higher than the principal amount applicable to the Notes (in the case of an Asset Sale), plus any accrued and unpaid interest thereon; provided, however , that prior to or contemporaneously with such defeasance, redemption, repurchase or other acquisition, the Issuer has made an Offer to Purchase with respect to the applicable Notes and has repurchased all Notes validly tendered for payment and not withdrawn in connection therewith;
 
 
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(9)              to the extent no Default in any payment in respect of principal or interest under the Notes or Event of Default has occurred and is continuing or will occur as a consequence thereof, the payment of regular cash quarterly dividends on the Issuer’s common stock; provided, however , that in no event shall the amount of dividends paid in any calendar year under this clause (9) exceed $200.0 million;

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

(11)              to the extent no Default in any payment in respect of principal or interest under the Notes or an Event of Default has occurred and is continuing or will occur as a consequence thereof, other Restricted Payments not in excess of $50.0 million in the aggregate;

(12)              to the extent no Default in any payment in respect of principal or interest under the Notes or an Event of Default has occurred and is continuing or will occur as a consequence thereof, any Restricted Payment so long as on the date of such Restricted Payment, after giving pro forma effect thereto and to any related transactions as if the same had occurred at the beginning of the Issuer’s most recent four consecutive fiscal quarters for which internal financial statements of the Issuer are available, the Consolidated Debt Ratio would not exceed 2.50 to 1.00; and

(13)              any Restricted Payment made in connection with the Transactions.

(c)              If any Person in which an Investment is made, which Investment constitutes a Restricted Payment when made, thereafter becomes a Restricted Subsidiary in accordance with this Indenture, all such Investments previously made in such Person shall no longer be counted as Restricted Payments for purposes of calculating the aggregate amount of Restricted Payments pursuant to clause (iii) of Section 4.05(a), in each case to the extent such Investments would otherwise be so counted.

(d)              For purposes of this Section 4.05, if a particular Restricted Payment involves a non-cash payment, including a distribution of assets, then such Restricted Payment shall be deemed to be an amount equal to the cash portion of such Restricted Payment, if any, plus an amount equal to the fair market value of the non-cash portion of such Restricted Payment as determined by the Issuer in good faith.

Section 4.06 Limitation on Debt .

(a)              The Issuer will not, and will not permit any of its Restricted Subsidiaries to incur any Debt (including Acquired Debt); provided , however , that the Issuer and any Restricted Subsidiary may incur Debt (including Acquired Debt) if, immediately after giving effect to the incurrence of such Debt and the receipt and application of the proceeds therefrom:

(1)              the Consolidated Fixed Charge Coverage Ratio of the Issuer and its Restricted Subsidiaries would be greater than 2.00 to 1.00; and

(2)              no Default shall have occurred and be continuing at the time or as a consequence of the incurrence of such Debt (any Debt incurred pursuant to this provision being herein referred to as “ Coverage Debt ”); provided, however , that the amount of Debt (other than Acquired Debt) that may be incurred or issued pursuant to the foregoing by Non-Guarantor Subsidiaries shall not exceed $100.0 million at any one time outstanding.
 
 
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(b)              Notwithstanding Section 4.06(a), the Issuer and its Restricted Subsidiaries may incur Permitted Debt.

(c)              For purposes of determining any particular amount of Debt under this Section 4.06:
 
(1)              Debt outstanding under the Credit Agreement and the Sumitomo Credit Agreement on the Issue Date will at all times be treated as incurred pursuant to clause (1) of the definition of Permitted Debt and shall not be permitted to be reclassified and

(2)              guarantees or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount will not be included.

(d)              Except as provided above, for purposes of determining compliance with this Section 4.06, in the event that an item of Debt meets the criteria of more than one of the types of Debt described above, including any Coverage Debt and any category of Permitted Debt, the Issuer, in its sole discretion, shall classify, and from time to time may reclassify, all or any portion of such item of Debt.

(e)              For purposes of determining compliance of any non-U.S. dollar-denominated Debt with this Section 4.06, the amount outstanding under U.S. dollar-equivalent principal amount of Debt denominated in a foreign currency shall at all times be calculated based on the relevant currency exchange rate in effect on the date such Debt was incurred, in the case of any term Debt, or first committed, in the cases of any revolving credit Debt; provided, however , that if such Debt is incurred to Refinance other Debt denominated in the same or different currency, and such Refinancing would cause the applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such Refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such Refinancing Debt does not exceed the principal amount of such indebtedness being Refinanced.

(f)              The accrual of interest, the accretion or amortization of original issue discount and the payment of interest on Debt in the form of additional Debt or payment of dividends on Capital Stock in the forms of additional shares of Capital Stock with the same terms will not be deemed to be an incurrence of Debt or issuance of Capital Stock for purposes of this Section 4.06.

Section 4.07 Limitation on Liens .

(a)              The Issuer will not, nor will the Issuer permit any Restricted Subsidiary to, issue, assume or guarantee any Debt secured by a Lien upon any Principal Property or upon any shares of stock of any Restricted Subsidiary without effectively providing that the Notes and the Guarantees, together with, if the Issuer so determines, any other indebtedness or obligation then existing or thereafter created, ranking equally in right of payment with the Notes or the Guarantees, shall be secured equally and ratably with, or, at the Issuer’s option, prior to, such Debt so long as such Debt shall be so secured, except that this restriction will not apply to:

(1)              Liens existing on the Issue Date;

(2)              Liens affecting property of a Person existing at the time it becomes a Restricted Subsidiary or at the time it is merged into or consolidated with the Issuer or a Restricted Subsidiary;
 
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(3)              Liens:

(i)              on property existing at the time of acquisition thereof,

(ii)              to secure payment of all or part of the purchase price thereof,

(iii)              to secure Debt incurred prior to, at the time of or within 12 months after such acquisition for the purpose of financing all or part of the purchase price thereof, or

(iv)              assumed or incurred in connection with the acquisition of property;

(4)              Liens on property to secure all or part of the cost of repairing, altering, constructing, improving, exploring, drilling or developing such property, or to secure Debt incurred to provide funds for such purpose;

(5)              Liens in connection with non-recourse Debt;

(6)              Liens on current assets or other personal property, other than shares of stock of Subsidiaries, to secure loans maturing not more than one year from the date of the creation thereof or to secure any renewal thereof for not more than one year at any one time;

(7)              Liens which secure indebtedness owing by a Restricted Subsidiary to the Issuer or another Restricted Subsidiary of the Issuer;

(8)              Liens on property of any Restricted Subsidiary principally engaged in a financing or leasing business; and
 
(9)              any extension, renewal or replacement, or successive extensions, renewals or replacements, in whole or in part, of any Lien referred to in the foregoing or of any Debt secured thereby; provided that the principal amount of Debt secured thereby shall not, with respect to Liens referred to in clauses (1) through (4) above, exceed the principal amount of Debt so secured at the time of such extension, renewal or replacement, and that such extension, renewal or replacement Lien shall be limited to all or part of substantially the same property which secured the Lien extended, renewed or replaced, plus improvements on such property.

(b)              Notwithstanding 4.07(a), the Issuer and any one or more of its Restricted Subsidiaries may, without securing the Notes and the Guarantees, issue, assume or guarantee Debt secured by Liens which would not be permitted by Section 4.07(a) in an aggregate amount which, together with:

(1) the aggregate principal amount of all of the Issuer’s other Debt and Debt of its Restricted Subsidiaries secured by a Lien upon any Principal Property or upon any shares of stock of any Restricted Subsidiary that would not be permitted to be secured by Liens under Section 4.07(a); and

(2) the Attributable Debt in respect of Sale and Lease-Back Transactions existing at such time (other than Sale and Lease-Back Transactions in which the property involved would have been permitted to be secured under Section 4.07(a) or the proceeds of which have been applied in accordance with Section 4.08(a)(2) to the retirement of long-term indebtedness);
 
 
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does not at the time exceed 10% of Consolidated Net Tangible Assets.

(c)              For purposes of this Section 4.07 and Section 4.08, the sale or other transfer of any interest in property of the character commonly referred to as a “production payment,” is not considered Debt secured by a Lien.

Section 4.08                  Limitation on Sale and Lease-Back Transactions. (a)            The Issuer will not, nor will the Issuer permit any Restricted Subsidiary to, enter into any arrangement with any Person providing for the leasing by the Issuer or any Restricted Subsidiary of any Principal Property, except for (x) temporary leases for terms of not more than three years, (y) leasing arrangements between the Issuer and a Subsidiary or (z) leasing arrangements between Subsidiaries, title to which property has been or is to be sold or transferred by the Issuer or such Restricted Subsidiary to such Person (such transaction, a “ Sale and Lease-Back Transaction ”), unless the proceeds of any such sale are at least equal to the fair value, as determined by the Board of Directors of the Issuer, of such property and either:

(1) the Issuer or such Restricted Subsidiary would be permitted under Section 4.07(a) to secure Debt by a Lien on the Principal Property to be leased in an amount at least equal to the Attributable Debt in respect of such Sale and Lease-Back Transaction without equally and ratably securing the Notes pursuant to Section 4.07; or

(2) the Issuer applies an amount equal to the fair value of the property so leased to the retirement, within 90 days of the effective date of any such Sale and Lease-Back Transaction, of the Issuer’s long-term indebtedness which ranks senior or equal to the Notes or the related Guarantee (other than indebtedness held by the Issuer or any of its Subsidiaries).

For the avoidance of doubt, Sale and Lease-Back Transactions do not include arrangements with governmental bodies entered into for the purpose of financing the purchase price or the cost of constructing or improving the property subject thereto.

(b)              Notwithstanding the provisions of Section 4.08(a), the Issuer or any of its Restricted Subsidiaries may enter into any Sale and Lease-Back Transaction which would not be permitted under Section 4.08(a) if the amount of the Attributable Debt in respect of such Sale and Lease-Back Transaction, together with:

(1) all of the Issuer’s Debt and Debt of its Restricted Subsidiaries secured by a Lien on Principal Property or shares of stock of any Restricted Subsidiary and not permitted under Section 4.07(a); and

(2) all other Attributable Debt in respect of Sale and Lease-Back Transactions existing at such time (other than Sale and Lease-Back Transactions in which the property involved would have been permitted to have a Lien in accordance with Section 4.07(a) or the proceeds of which have been applied in accordance with Section 4.08(a)(2) to the retirement of long-term indebtedness);

does not at the time exceed 10% of Consolidated Net Tangible Assets.
 
 
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Section 4.09 Future Guarantors .

(a)              After the Issue Date, the Issuer will cause each Restricted Subsidiary of the Issuer that guarantees (i) the Credit Agreement or (ii) any Material Capital Markets Debt issued by the Issuer or any Subsidiary Guarantor to, within 45 days of the incurrence of such guarantee, execute and deliver to the Trustee a supplemental indenture to this Indenture, which may be in the form of Exhibit C, hereto pursuant to which such Restricted Subsidiary will guarantee payment of the Notes on the same terms and conditions as those set forth in this Indenture.

(b)              Each Guarantee of a Subsidiary Guarantor shall be released in accordance with the provisions of Section 11.06.

(c)              Any entity that makes a payment under its Guarantee will be entitled upon payment in full of all obligations that are guaranteed under this Indenture to a contribution from each other Subsidiary Guarantor in an amount equal to such other Subsidiary Guarantor’s pro rata portion of such payment based on the respective net assets of all the Subsidiary Guarantors at the time of such payment determined in accordance with GAAP.

Section 4.10                  Offer to Repurchase Upon Change of Control. If a Change of Control occurs after the Merger Closing Date, unless the Issuer has exercised its right to redeem all Notes pursuant to Sections 3.03 and 3.07, the Issuer will make an offer to each Holder to repurchase all or any part (in multiples of $1,000 principal amount) of that Holder’s Notes (the “ Change of Control Offer ”) at a repurchase price in cash equal to 101% of the aggregate principal amount of Notes repurchased plus any accrued and unpaid interest on the Notes repurchased to the date of purchase (the “ Change of Control Payment ”).

(a)              Within 30 days following any Change of Control, unless the Issuer has exercised its right to redeem the Notes pursuant to Sections 3.03 and 3.07, or, at the Issuer’s option, prior to any Change of Control, but after the public announcement of the Change of Control, the Issuer will mail a notice to each Holder or otherwise deliver notice in accordance with the applicable procedures of the Depositary, with a copy to the Trustee, describing the transaction or transactions that constitute or may constitute the Change of Control and stating:

(1)              that a Change of Control Offer is being made pursuant to this Section 4.10, the expiration time for such Change of Control Offer (which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed or otherwise delivered in accordance with the applicable procedures of the Depositary) and that all Notes properly tendered pursuant to such Change of Control Offer will be accepted for purchase by the Issuer at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest, if any, to the date of purchase (subject to the right of Holders of record on the applicable Record Date to receive interest due on the Change of Control Payment Date);

(2)              the purchase date (which shall be no later than five Business Days after the date such Change of Control Offer expires) (the “ Change of Control Payment Date ”);

(3)              that Notes must be tendered in integral multiples of $1,000, and any Note not properly tendered will remain outstanding and continue to accrue interest (subject to clause (7) below);

(4)              that, unless the Issuer defaults in the payment of the Change of Control Payment, any Note accepted for payment pursuant to the Change of Control Offer will cease to accrue interest on and after the Change of Control Payment Date;
 
 
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(5)              that Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender such Notes, with the form entitled “Option of Holder to Elect Purchase” attached to such Notes completed, to the Paying Agent specified in the notice at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment Date;

(6)              that Holders shall be entitled to withdraw their tendered Notes and their election to require the Issuer to purchase such Notes; provided that the Paying Agent receives at the address specified in the notice, not later than the expiration time of such Change of Control Offer, a telegram, facsimile transmission or letter setting forth the name of the Holder of the Notes, the principal amount of Notes tendered for purchase and a statement that such Holder is withdrawing its tendered Notes and its election to have such Notes purchased;

(7)              that, if a Holder is tendering less than all of its Notes, such Holder will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (the unpurchased portion of the Notes must be equal to $2,000 or an integral multiple of $1,000 in excess thereof);

(8)              that the Change of Control Offer is conditioned on the Change of Control occurring on or prior to the Change of Control Payment Date, if applicable; and

(9)              the other procedures, as determined by the Issuer, consistent with this Section 4.10 that a Holder must follow.

The notice, if mailed or otherwise delivered in a manner herein provided, shall be conclusively presumed to have been given, whether or not the Holder receives such notice.  If (A) the notice is mailed in a manner herein provided and (B) any Holder fails to receive such notice or a Holder receives such notice but it is defective, such Holder’s failure to receive such notice or such defect shall not affect the validity of the proceedings for the purchase of the Notes as to all other Holders that properly received such notice without defect.

(c)              On the Change of Control Payment Date, the Issuer will, to the extent lawful:

(1)              accept for payment all Notes or portions of Notes (in integral multiples of $1,000)  properly tendered pursuant to the Change of Control Offer; provided that if, following repurchase of a portion of a Note, the remaining principal amount of such Note outstanding immediately after such repurchase would be less than $2,000, then the portion of such Note so repurchased shall be reduced so that the remaining principal amount of such Note outstanding immediately after such repurchase is $2,000;

(2)              deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions of Notes properly tendered; and

(3)              deliver or cause to be delivered to the Trustee for cancellation the Notes properly accepted, together with an Officers’ Certificate stating the aggregate principal amount of Notes being purchased by the Issuer in accordance with this Section 4.10.

(d)              The Paying Agent will promptly mail (or otherwise deliver in accordance with the applicable procedures of DTC) to each Holder of Notes properly tendered the Change of Control Payment for such Notes, and the Trustee will promptly authenticate and mail (or otherwise deliver in accordance with the applicable procedures of DTC) (or cause to be transferred by book entry) to each Holder a new Note (it being understood that, notwithstanding anything in this Indenture to the contrary, no Opinion of Counsel or Officers’ Certificate will be required for the Trustee to authenticate and mail or deliver such new Note) equal in principal amount to any unpurchased portion of any Notes surrendered; provided that each new Note will be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof.
 
 
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(e)              If the Change of Control Payment Date is on or after a Record Date and on or before the related Interest Payment Date, any accrued and unpaid interest to the Change of Control Payment Date will be paid on the Change of Control Payment Date to the Person in whose name such Note is registered at the close of business on such Record Date.

(f)              The Issuer will not be required to make a Change of Control Offer upon a Change of Control if a third party makes a Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 4.10 for a Change of Control Offer made by the Issuer and such third party purchases all Notes properly tendered and not withdrawn under such Change of Control Offer.

(g)              Notwithstanding anything to the contrary contained herein, 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 a Change of Control at the time of launching the Change of Control Offer.

(h)              The Issuer will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of any Notes as a result of a Change of Control.  To the extent that the provisions of any securities laws or regulations conflict with this Section 4.10, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 4.10 by virtue of such conflict.

(i)              Other than as specifically provided in this Section 4.10, any purchase pursuant to this Section 4.10 shall be made pursuant to the provisions of Sections 3.02, 3.05 and 3.06.

Section 4.11 Limitation on Asset Sales .

(a)              The Issuer will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless :

(1)              the Issuer (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the fair market value of the assets or Capital Stock issued or sold or otherwise disposed of as determined by the Issuer in good faith; and

(2)              except in the case of a Permitted Asset Swap, at least 75% of the consideration received in the Asset Sale by the Issuer or such Restricted Subsidiary is in the form of cash or Eligible  Cash Equivalents.

For the purposes of this Section 4.11(a), the following will be deemed to be cash:

(i)              any liabilities, as shown on the most recent consolidated balance sheet of the Issuer or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Guarantee) that are assumed by the transferee of any such assets pursuant to a customary assignment and assumption agreement that releases the Issuer or such Restricted Subsidiary from further liability;
 
 
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(ii)              any securities, notes or other obligations received by the Issuer or any such Restricted Subsidiary from such transferee that are converted by the Issuer or such Restricted Subsidiary into cash within 180 days of their receipt to the extent of the cash received in that conversion; and

(iii)              any Designated Non-cash Consideration received by the Issuer or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value as determined by the Issuer in good faith, taken together with all other Designated Non-cash Consideration received pursuant to this clause (iii) that is at that time outstanding, not to exceed $50.0 million 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)              Within 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Issuer (or the applicable Restricted Subsidiary, as the case may be) may apply such Net Cash Proceeds at its option:

(A)              to permanently repay (a) Debt under the Credit Agreement and, if the obligation repaid is revolving credit Debt, to correspondingly reduce commitments with respect thereto and/or (b) other unsecured Debt ranking pari passu in right of payment with the Notes (provided that if the Issuer shall so reduce obligations under such other unsecured Debt, other than the Notes, the Issuer will (x) equally and ratably reduce obligations under the Notes under any applicable optional redemption provisions or by open market purchases or (y) make an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders of to purchase at a purchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest and additional interest, if any, the pro rata principal amount of Notes);

(B)              to acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes a Restricted Subsidiary of the Issuer;

(C)              to make a capital expenditure in or that is used or useful in a Permitted Business or to make expenditures for maintenance, repair or improvement of existing properties and assets;

(D)              to acquire other assets (other than inventory) that are used or useful in a Permitted Business;

(E)              to repay or repurchase Debt secured by the assets of the Issuer or any Restricted Subsidiaries; or

(F)              any combination of the foregoing.

(c)              Any Net Cash Proceeds from Asset Sales that are not applied, invested or subject to an offer to repurchase as provided in Section 4.11(b) will constitute “ Excess Proceeds .” When the aggregate amount of Excess Proceeds with respect to the Notes exceeds $50.0 million, the Issuer will, within 30 days, make an offer to purchase to all Holders of such Notes (an “ Asset Sale Offer ”), and to all holders of other Debt containing provisions similar to those set forth in this Indenture with respect to assets sales, to purchase the maximum aggregate principal amount of such Notes and such other Debt that may (including, without limitation, the 2023 Notes), be purchased out of the Excess Proceeds. The offer price for the Notes in any Asset Sale Offer will be equal to 100% of the principal amount plus accrued and unpaid interest to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer in respect of such Notes, the Issuer may use those funds for any purpose not otherwise prohibited by this Indenture and they will no longer constitute Excess Proceeds. If the aggregate principal amount of Notes and other Debt tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Excess Proceeds will be allocated between such Notes and such other Debt based on the principal amount (or accreted value, if applicable) of such Notes and such other Debt tendered and the Trustee will select the Notes to be purchased on a pro rata basis among all such Notes tendered (subject to DTC procedures). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
 
 
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(d)              The Issuer will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of any Notes as a result of an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale Offer provisions of the Notes, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Asset Sale Offer provisions of the Notes by virtue of such conflict.

Section 4.12 Effectiveness of Covenants .

(a)              Following the first day (such date, the “ Termination Date ”):

(1)              the Notes have a rating of Investment Grade from both S&P and Moody’s and

(2)              no Default has occurred and is continuing under this Indenture,
 
the Issuer and its Restricted Subsidiaries shall no longer be subject to the provisions of Sections 4.05, 4.06, 4.09 and 4.11.

(b)              In the event that the Notes’ credit rating is downgraded from Investment Grade by any Rating Agency, the provisions of Sections 4.05, 4.06, 4.09 and 4.11 will not thereafter be reinstated.

(c)              Promptly following the Termination Date, the Issuer shall provide an Officers’ Certificate to the Trustee regarding such occurrence. The Trustee shall have no obligation to independently determine or verify if a Termination Date has occurred or notify the Holders of the Termination Date. The Trustee may provide a copy of such Officers’ Certificate to any Holder upon request.

ARTICLE 5

SUCCESSORS

Section 5.01 Consolidation, Merger, Conveyance, Transfer or Lease .

(a)              The Issuer will not merge or consolidate with any other Person or sell or convey all or substantially all of its assets to any Person, unless :

(1)              the successor Person (if other than the Issuer) (the “ Successor Issuer ”) shall be a corporation organized under the laws of the United States or any state thereof and shall expressly assume (a) the due and punctual payment of the principal of and premium, if any, and interest on all the Notes, according to their tenor, and the due and punctual performance and observance of all of the covenants and conditions under this Indenture to be performed or observed by the Issuer, by supplemental indenture satisfactory in form to the Trustee, executed and delivered to the Trustee by such Person and (b) all obligations of the Issuer under the Registration Rights Agreement, by a written instrument satisfactory in form to the parties thereto, executed and delivered to such parties by such Person;
 
 
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(2)              the Successor Issuer shall not, immediately after such merger or consolidation, or such sale or conveyance, be in default in the performance of any such covenant or condition;

(3)              each Subsidiary Guarantor (unless such Subsidiary Guarantor is the other party to the transactions described above, in which case the preceding clause (1) shall apply) shall have by supplemental indenture confirmed that the applicable Guarantee shall apply to such Successor Issuer’s obligations under this Indenture and the Notes and shall have by written agreement confirmed that its obligations under the Registration Rights Agreement shall continue to be in effect; and

(4)              the Issuer shall have provided the Trustee with an Opinion of Counsel and Officers’ Certificate each stating that such merger or consolidation, or such sale or conveyance, and such supplemental indenture, if any, comply with this Indenture.

(b)              Subject to the limitations set forth in this Indenture, the Successor Issuer will succeed to, and be substituted for, the Issuer under this Indenture, the Notes and the Registration Rights Agreement.

(c)              The Issuer will not permit any Subsidiary Guarantor to merge or consolidate with any other Person or sell or convey all or substantially all of its assets to any Person, unless:

(1)              (A)                the successor Person (if other than the Issuer or such Subsidiary Guarantor) (the “ Successor Subsidiary Guarantor ”) shall expressly assume by supplemental indenture satisfactory in form to the Trustee, executed and delivered to the Trustee by such Person all the obligations of such Subsidiary Guarantor under the applicable Guarantee and this Indenture;

(B)              the Successor Subsidiary Guarantor shall not, immediately after such merger or consolidation, or such sale or conveyance, be in default in the performance of any such covenant or condition; and

(C)              the Successor Subsidiary Guarantor shall have provided the Trustee with an Opinion of Counsel and Officers’ Certificate each stating that such merger or consolidation, or such sale or conveyance, and such supplemental indenture, if any, comply with this Indenture; or

(2)              the merger, consolidation, sale or conveyance complies with Section 4.11.

(d)              Notwithstanding anything in the foregoing provisions of this Section 5.01 to the contrary, this Section 5.01 shall not apply to the transactions contemplated by the Separation Agreement or by the Merger Agreement.
 
 
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Section 5.02 Successor Entity Substituted .

Upon any merger, consolidation or sale or conveyance of all or substantially all of the assets of any Subsidiary Guarantor or the Issuer, as the case may be, in accordance with Section 5.01, such Subsidiary Guarantor or the Issuer, as the case may be, will be released from its obligations under this Indenture, the Notes, the Guarantees and the Registration Rights Agreement, as applicable, and the Successor Issuer or the Successor Subsidiary Guarantor, as the case may be, will succeed to, and be substituted for, and may exercise every right and power of, such Subsidiary Guarantor or the Issuer, as the case may be, under this Indenture, the Notes, the Registration Rights Agreement and the Guarantees, as applicable.

ARTICLE 6

DEFAULTS AND REMEDIES

Section 6.01 Events of Default .

Each of the following is an “ Event of Default ”:

(1)              default in the payment in respect of the principal of, or premium, if any, on any Note when due and payable (whether at Stated Maturity or upon repurchase, acceleration,  optional redemption or otherwise);

(2)              default in the payment of any interest (including Additional Interest (as required by the Registration Rights Agreement)) upon any Note when it becomes due and payable, and continuance of such default for a period of 30 days;

(3)              default in the performance, or breach, of any covenant or agreement of the Issuer or any Restricted Subsidiary in this Indenture (other than a covenant or agreement a default in which performance or which breach is specifically dealt with in clauses (1) or (2) above), and continuance of such default or breach for a period of 60 days after written notice thereof has been given to the Issuer by the Trustee or to the Issuer and the Trustee by the Holders of at least 25% in aggregate principal amount of the outstanding Notes ( provided that, and without limiting the foregoing in this clause (3), in the case of a default or breach of any covenant or agreement described under Section 4.03, no Event of Default shall occur (and any such default or breach shall be deemed to not have occurred for all purposes under this Indenture) with respect to any failure to furnish or file any information or report required thereunder if the Issuer files or furnishes such information or report within 120 days after the Issuer was required (or would have been required) to file the same pursuant to the Commission’s rules and regulations);

(4)              the applicable Guarantee ceases to be in full force and effect (except as contemplated by this Indenture) or is declared null and void in a judicial proceeding or a Subsidiary Guarantor denies in writing or disaffirms in writing its obligations under this Indenture or Guarantee, other than by reason of the termination of this Indenture or the release of such Guarantee in accordance with the terms of this Indenture;

(5)              the Issuer or a Significant Subsidiary shall (i) voluntarily commence any proceeding or file any petition seeking relief under Title 11 of the United States Code or any other federal or state bankruptcy, insolvency or similar law, (ii) consent to the institution of, or fail to controvert in a timely and appropriate manner, any such proceeding or the filing of any such petition, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator or similar official for the Issuer or a Significant Subsidiary or for a substantial part of its property, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors, (vi) admit in writing its inability or fail generally to pay its debts as they become due or (vii) take corporate action for the purpose of effecting any of the foregoing; or
 
 
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(6)              the entry of an order or decree by a court having competent jurisdiction in the premises for (i) relief in respect of the Issuer or a Significant Subsidiary or a substantial part of the property of the Issuer or a Significant Subsidiary, under Title 11 of the United States Code or any other federal or state bankruptcy, insolvency or similar law, (ii) the appointment of a receiver, trustee, custodian, sequestrator or similar official for the Issuer or a Significant Subsidiary or for a substantial part of the property of the Issuer or a Significant Subsidiary or (iii) the winding-up or liquidation of the Issuer or a Significant Subsidiary; and such order or decree shall continue unstayed and in effect for 60 days.

Section 6.02 Acceleration .

(a)              If an Event of Default (other than an Event of Default described in clauses (5) and (6) of Section 6.01) with respect to the Issuer occurs and is continuing, then and in every such case, unless the principal of all the Notes have already become due and payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount of the then outstanding Notes may declare the principal of, premium, if any, and accrued and unpaid interest on the Notes to be due and payable immediately by a notice in writing to the Issuer (and to the Trustee if given by such Holders).  Upon such declaration, such principal, premium, if any, and accrued and unpaid interest, if any, will be due and payable.

(b)              If, at any time after the principal amount of the Notes shall have been so declared to be immediately due and payable, and before any judgment or decree for the payment of the moneys due on account of such declaration shall have been obtained or entered, all defaults under this Indenture, other than the nonpayment of principal of or premium, if any, or accrued interest on the Notes which shall have become due by acceleration shall have been remedied—then and in every such case the Holders of a majority in aggregate principal amount of the Notes then outstanding, by written notice to the Issuer and to the Trustee, may waive all defaults and rescind and annul such declaration and its consequences; but no such waiver or rescission and annulment shall extend or shall, affect any subsequent default, or shall impair any right consequent thereon.

(c)              The Trustee may withhold from Holders notice of any Default (except any Default in the payment of principal of, premium, if any, or interest on the Notes) if the Trustee determines that withholding notice is in the interests of Holders to do so.

(d)              In case an Event of Default described in clauses (5) or (6) of Section 6.01 with respect to the Issuer occurs, the principal of, premium, if any, and accrued and unpaid interest, if any, on all the then outstanding Notes will ipso facto become immediately due and payable without any declaration or other act on the part of the Trustee or any Holders.

Section 6.03 Other Remedies .

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

The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding.  A delay or omission by the Trustee or any Holder of a Note in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default.  All remedies are cumulative to the extent permitted by law.
 
 
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Section 6.04 Waiver of Past Defaults .

The Holders of not less than a majority in aggregate principal amount of the then outstanding Notes by written notice to the Trustee may on behalf of the Holders of all Notes waive any past Default and its consequences, except a Default:

(1)              in any payment in respect of the principal of (or premium, if any) or interest on any Notes (including any Note which is required to have been purchased pursuant to a Change of Control which has been made by the Issuer); or

(2)              in respect of a covenant or provision hereof which cannot be modified or amended without the consent of the Holder of each outstanding Note issued thereunder that is affected,
 
provided that, subject to Section 6.02, the Holders of a majority in principal amount of the then outstanding Notes may rescind an acceleration and its consequences, including any related payment default that resulted from such acceleration.  Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured for every purpose of this Indenture, but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.

Section 6.05 Control by Majority .

The Holders of a majority in principal amount of the outstanding Notes 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.  However, the Trustee may refuse to follow any direction that conflicts with law, this Indenture, the Notes or any Guarantee, or that the Trustee determines in good faith is unduly prejudicial to the rights of any other Holder or that would involve the Trustee in personal liability.

Section 6.06 Limitation on Suits .

Subject to Section 6.07, no Holder will have any right to institute any proceeding with respect to this Indenture or for any remedy hereunder unless :

(1)              such Holder has previously given to the Trustee written notice of a continuing Event of Default;

(2)              the Holders of at least 25% in aggregate principal amount of the then outstanding Notes have made written request to the Trustee;

(3)              such Holders have provided security and indemnity satisfactory to the Trustee against any loss, liability or expense, to institute such proceeding as Trustee;

(4)              the Trustee has not complied with such request within 60 days after the receipt of the request and the offer of security or indemnity; and
 
 
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(5)              the Holders of a majority in aggregate principal amount of the then outstanding Notes have not given the Trustee a direction inconsistent with such request within such 60-day period.

The limitations in this Section 6.06 do not apply, however, to a suit instituted by a Holder directly (as opposed to through the Trustee) for enforcement of payment of the principal of (and premium, if any) or interest on such Note on or after the respective due dates expressed in such Note.

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

Section 6.07 Rights of Holders to Receive Payment .

Notwithstanding any other provision of this Indenture, the right of any Holder to receive payment of principal, premium, if any, and interest on its Note, on or after the respective due dates expressed or provided for in such Note (including in connection with an Asset Sale Offer or a Change of Control Offer), 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 Issuer and any other obligor on the Notes for the whole amount of principal, premium, if any, and interest remaining unpaid on the Notes, together with interest on overdue principal and, to the extent lawful, interest and such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee and its agents and counsel.

Section 6.09 Restoration of Rights and Remedies .

If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceedings, the Issuer, the Subsidiary Guarantors, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding has been instituted.

Section 6.10 Rights and Remedies Cumulative .

Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes in Section 2.07, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy are, to the extent permitted by law, cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise.  The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
 
 
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Section 6.11 Delay or Omission Not Waiver .

No delay or omission of the Trustee or of any Holder to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein.  Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.

Section 6.12 Trustee May File Proofs of Claim .

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

Section 6.13 Priorities .

If the Trustee collects any money or property pursuant to this Article 6, it shall pay out the money in the following order:

(1)              to the Trustee and the Agents and their respective agents and attorneys for amounts due under Section 7.07, including payment of all reasonable compensation, expenses and liabilities incurred, and all advances made, by the Trustee and the costs and expenses of collection;

(2)              to Holders for amounts due and unpaid on the Notes for principal, premium, if any, and interest ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal, premium, if any, and interest, respectively; and

(3)              to the Issuer or to such party as a court of competent jurisdiction shall direct, including a Subsidiary Guarantor, if applicable.

The Trustee may fix a record date and payment date for any payment to Holders pursuant to this Section 6.13.  Promptly after any record date is set pursuant to this Section 6.13, the Trustee shall cause notice of such record date and payment date to be given to the Issuer and to each Holder in the manner set forth in Section 12.02.
 
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Section 6.14 Undertaking for Costs .

In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee (acting in any capacity hereunder), a court in its discretion may require the filing by any party litigant in such suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant.  This Section 6.14 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 outstanding Notes.

ARTICLE 7

TRUSTEE

Section 7.01 Duties of Trustee .

(a)              If an Event of Default has occurred and is continuing, the Trustee will exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care in its 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 duties of the Trustee shall be determined solely by the express provisions of this Indenture and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and

(2)              in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture.  However, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall 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 liabilities for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:

(1)              this paragraph does not limit the effect of paragraph (b) of this Section 7.01;

(2)              the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved in a court of competent jurisdiction in a final non-appealable order 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)              Whether or not therein expressly so provided, every provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (a), (b) and (c) of this Section 7.01.
 
 
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(e)              Subject to this Article 7, the Trustee will be under no obligation to exercise any of the rights or powers under this Indenture, the Notes and the Guarantees at the request or direction of any of the Holders unless such Holders have offered to the Trustee indemnity or security satisfactory to it against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction.

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

Section 7.02 Rights of Trustee .

(a)              The Trustee may conclusively rely upon any document believed by it to be genuine and to have been signed or presented by the proper Person.  The Trustee need not investigate any fact or matter stated in the document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine in good faith to make such further inquiry or investigation, it shall incur no liability or additional liability of any kind by reason of such inquiry or investigation or lack thereof.

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

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

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

(e)              Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Issuer or a Subsidiary Guarantor shall be sufficient if signed by an Officer of the Issuer or such Subsidiary Guarantor.

(f)              None of the provisions of this Indenture shall require the Trustee to expend or risk its own funds or otherwise to incur any liability, financial or otherwise, in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or indemnity reasonably satisfactory to it against such risk or liability is not assured to it.

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

(h)              In no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.
 
 
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(i)              The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, any Agent, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder.

(j)              The Trustee shall not at any time be under any duty or responsibility to any Holders to determine whether the Additional Interest is payable and the amount thereof.

(k)              The Trustee may request that the Issuer deliver an Officers’ Certificate setting forth the names of individuals or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officers’ Certificate may be signed by any person authorized to sign an Officers’ Certificate, including any Person specified as so authorized in any such certificate previously delivered and not superseded.

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

Section 7.03 Individual Rights of Trustee .

The Trustee or any Agent in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Issuer or any affiliate of the Issuer with the same rights it would have if it were not Trustee or such Agent.  However, in the event that the Trustee acquires any conflicting interest within the meaning of Trust Indenture Act Section 310(b) it must eliminate such conflict within 90 days, apply to the SEC for permission to continue as trustee (if this Indenture has been qualified under the Trust Indenture Act) or resign.  Any Agent may do the same with like rights and duties.  The Trustee is also subject to Sections 7.10 and 7.11.

Section 7.04 Trustee’s Disclaimer .

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

Section 7.05 Notice of Defaults .

If a Default occurs and is continuing and is known to the Trustee, the Trustee will mail to each Holder a notice of the Default within 90 days after it occurs.  Except in the case of an Event of Default specified in clauses (1) or (2) of Section 6.01, the Trustee may withhold from the Holders notice of any Default or Event of Default if the Trustee determines in good faith that withholding the notice is in the interest of the Holders.

Section 7.06 Reports by Trustee to Holders of the Notes .

(a)              Within 60 days after each May 15, beginning with the May 15 following the date of this Indenture, and for so long as Notes remain outstanding, the Trustee shall deliver to the Holders of the Notes a brief report dated as of such reporting date that complies with Trust Indenture Act Section 313(a) (but if no event described in Trust Indenture Act Section 313(a) has occurred within the twelve months preceding the reporting date, no report need be transmitted).  The Trustee also shall comply with Trust Indenture Act Section 313(b)(2).
 
 
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(b)              A copy of each report at the time of its delivery to the Holders shall be mailed to the Issuer and filed with the Commission and each national securities exchange on which the Notes are listed in accordance with Trust Indenture Act Section 313(d).  The Issuer shall promptly notify the Trustee in writing in the event the Notes are listed on any national securities exchange or delisted therefrom.

Section 7.07 Compensation and Indemnity .

(a)              The Issuer and the Subsidiary Guarantors, jointly and severally, shall pay to the Trustee acting in any capacity hereunder and any Agent from time to time such compensation for its acceptance of this Indenture and services hereunder as the parties shall agree in writing from time to time.  The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust.  The Issuer shall reimburse the Trustee promptly upon request for all reasonable disbursements, advances and expenses incurred or made by it in addition to the compensation for its services.  Such expenses shall include the reasonable compensation, disbursements and expenses of the Trustee’s and any Agent’s agents and counsel.  The Trustee shall provide the Issuer reasonable notice of any expenditure not in the ordinary course of business.

(b)              The Issuer and the Subsidiary Guarantors, jointly and severally, shall indemnify the Trustee acting in any capacity hereunder and any Agent for, and hold each of the Trustee or Agent and any predecessor harmless against, any and all loss, damage, claims, liability or expense (including attorneys’ fees and expenses) incurred by it in connection with the acceptance or administration of this trust and the performance of its duties hereunder (including the costs and expenses of enforcing this Indenture against the Issuer or any Subsidiary Guarantor (including this Section 7.07)) or defending itself against any claim whether asserted by any Holder, the Issuer or any Subsidiary Guarantor, or liability in connection with the acceptance, exercise or performance of any of its powers or duties hereunder).  The Trustee shall notify the Issuer promptly of any claim for which it may seek indemnity.  Failure by the Trustee to so notify the Issuer shall not relieve the Issuer of its obligations hereunder.  The Issuer shall defend the claim and the Trustee may have separate counsel and the Issuer shall pay the fees and expenses of such counsel.  The Issuer need not reimburse any expense or indemnify against any loss, liability or expense incurred by the Trustee through the Trustee’s own willful misconduct, negligence or bad faith.

(c)              The obligations of the Issuer and the Subsidiary Guarantors under this Section 7.07 shall survive the satisfaction and discharge of this Indenture or the earlier resignation or removal of the Trustee and the provisions of this Article 7, as applicable, shall also apply to any Agent acting hereunder.

(d)              To secure the payment obligations of the Issuer and the Subsidiary Guarantors in this Section 7.07, the Trustee shall have a Lien prior to the Notes on all money or property held or collected by the Trustee, except that held in trust to pay principal and interest on particular Notes.  Such Lien shall survive the satisfaction and discharge of this Indenture or the earlier resignation or removal of the Trustee.

(e)              When the Trustee incurs expenses or renders services after an Event of Default specified in Section 6.01(5) or (6) occurs, the expenses and the compensation for the services (including the fees and expenses of its agents and counsel) are intended to constitute expenses of administration under any Bankruptcy Law.
 
 
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Section 7.08 Replacement of Trustee .

(a)              A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustee’s acceptance of appointment as provided in this Section 7.08.  The Trustee may resign in writing at any time by giving 30 days’ prior notice of such resignation to the Issuer and be discharged from the trust hereby created by so notifying the Issuer.  The Holders of a majority in aggregate principal amount of the then outstanding Notes may remove the Trustee by so notifying the Trustee and the Issuer in writing.  The Issuer may remove the Trustee if:

(1)              the Trustee fails to comply with Section 7.10;

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

(3)              a receiver or public officer takes charge of the Trustee or its property; or

(4)              the Trustee becomes incapable of acting hereunder.

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

(c)              If a successor Trustee does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee (at the Issuer’s expense), the Issuer or the Holders of at least 10% in aggregate principal amount of the then outstanding Notes may petition any court of competent jurisdiction for the appointment of a successor Trustee.

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

(e)              A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Issuer.  Thereupon, the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture.  The successor Trustee shall mail a notice of its succession to Holders.  The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee; provided that all sums owing to the Trustee hereunder have been paid and such transfer shall be subject to the Lien provided for in Section 7.07.  Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the Issuer’s obligations under Section 7.07 shall continue for the benefit of the retiring Trustee. Any resigning or removed Trustee shall have no liability or responsibility for the action or inaction of any successor Trustee.
 
                     (f)              As used in this Section 7.08, the term “Trustee” shall also include each Agent.

Section 7.09 Successor Trustee by Merger, etc .

If the Trustee consolidates, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation or national banking association, the successor corporation or national banking association without any further act shall be the successor Trustee, subject to Section 7.10.
 
 
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Section 7.10 Eligibility; Disqualification .

(a)              There shall at all times be a Trustee hereunder that is a corporation or national banking association organized and doing business under the laws of the United States or of any state thereof that is authorized under such laws to exercise corporate trustee power, that is subject to supervision or examination by federal or state authorities and that has a combined capital and surplus of at least $50,000,000 as set forth in its most recent published annual report of condition.

(b)              This Indenture shall always have a Trustee who satisfies the requirements of Trust Indenture Act Sections 310(a)(1), (2) and (5).  The Trustee is subject to Trust Indenture Act Section 310(b).

Section 7.11 Preferential Collection of Claims Against the Issuer .

The Trustee is subject to Trust Indenture Act Section 311(a), excluding any creditor relationship listed in Trust Indenture Act Section 311(b).  A Trustee who has resigned or been removed shall be subject to Trust Indenture Act Section 311(a) to the extent indicated therein.

ARTICLE 8

DEFEASANCE AND COVENANT DEFEASANCE

Section 8.01 Option to Effect Defeasance or Covenant Defeasance .

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

Section 8.02 Defeasance and Discharge .

(a)              Upon the Issuer’s exercise under Section 8.01 of the option applicable to this Section 8.02, the Issuer and the Subsidiary Guarantors shall, subject to the satisfaction of the conditions set forth in Section 8.04, be deemed to have been discharged from their obligations with respect to the Indenture, all outstanding Notes and Guarantees on the date the conditions set forth below are satisfied (“ Defeasance ”).  For this purpose, Defeasance means that the Issuer shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes, which shall thereafter be deemed to be “outstanding” only for the purposes of Section 8.05 and the other Sections of this Indenture referred to in clauses (1) through (5) below, and to have satisfied all of its other obligations under such Notes and this Indenture, including that of the Subsidiary Guarantors (and the Trustee, on demand of and at the expense of the Issuer, shall execute proper instruments acknowledging the same), except for the following provisions which shall survive until otherwise terminated or discharged hereunder:

(1)              the rights of Holders to receive payments in respect of the principal of and premium, if any, and interest on the Notes when such payments are due;

(2)              the Issuer’s obligations with respect to the Notes concerning issuing temporary Notes, registration of Notes, mutilated, destroyed, lost or stolen Notes and the maintenance of an office or agency for payment and money for security payments held in trust;

(3)              the rights, powers, trusts, duties and immunities of the Trustee;

(4)              the Issuer’s right of optional redemption pursuant to Section 3.07; and
 
 
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(5)              this Section 8.02.

(b)              Following the Issuer’s exercise of its Defeasance option, payment of the Notes may not be accelerated because of an Event of Default.

(c)              Subject to compliance with this Article 8, the Issuer may exercise its option under this Section 8.02 notwithstanding the prior exercise of its option under Section 8.03.

Section 8.03 Covenant Defeasance .

Upon the Issuer’s exercise under Section 8.01 of the option applicable to this Section 8.03, the Issuer and the Subsidiary Guarantors shall, subject to the satisfaction of the conditions set forth in Section 8.04, be released from their obligations under the covenants contained in Sections 3.09, 4.03, 4.05, 4.06, 4.07, 4.08, 4.09, 4.10 and 4.11 with respect to the outstanding Notes, and the Subsidiary Guarantors shall be deemed to have been discharged from their obligations with respect to all Guarantees, on and after the date the conditions set forth in Section 8.04 are satisfied (“ Covenant Defeasance ”), and the Notes shall thereafter be deemed not “outstanding” for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed “outstanding” for all other purposes hereunder (it being understood that such Notes shall not be deemed outstanding for accounting purposes).  For this purpose, Covenant Defeasance means that, with respect to this Indenture and the outstanding Notes, the Issuer may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event of Default under Section 6.01, but, except as specified above, the remainder of this Indenture and the Notes shall be unaffected thereby.  In addition, upon the Issuer’s exercise under Section 8.01 of the option applicable to this Section 8.03, subject to the satisfaction of the conditions set forth in Section 8.04, an Event of Default specified in Section 6.01(3) (only with respect to covenants that are released as a result of such Covenant Defeasance) and 6.01(4), (5) (solely with respect to any Significant Subsidiary) and (6) (solely with respect to any Significant Subsidiary) will no longer constitute an Event of Default.

Section 8.04 Conditions to Legal or Covenant Defeasance .

(a)              The following shall be the conditions to the exercise of either the Defeasance option under Section 8.02 or the Covenant Defeasance option under Section 8.03 with respect to the Notes:

(1)              the Issuer must irrevocably have deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to the benefit of the Holders of such Notes: (A) money in an amount, (B) Government Securities, which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than the due date of any payment, money in an amount or (C) a combination thereof, in each case sufficient without reinvestment, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which shall be applied by the Trustee to pay and discharge, the entire indebtedness in respect of the principal of and premium, if any, and interest on such Notes on the Stated Maturity thereof or (if the Issuer has made irrevocable arrangements satisfactory to the Trustee for the giving of notice of redemption in the name and at the expense of the Issuer) the redemption date thereof, as the case may be, in accordance with the terms of this Indenture and such Notes;
 
 
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(2)                 in the case of Defeasance, the Issuer has delivered to the Trustee an Opinion of Counsel stating that

(A)              the Issuer has received from, or there has been published by, the U.S. Internal Revenue Service a ruling or

(B)              since the Issue Date, there has been a change in the applicable U.S.  federal income tax law,

in either case (A) or (B) to the effect that, and based thereon such Opinion of Counsel will confirm that, the Holders will not recognize gain or loss for U.S. federal income tax purposes as a result of the deposit, Defeasance and discharge to be effected with respect to the Notes and will be subject to U.S. federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit, Defeasance and discharge were not to occur;
(3)              in the case of Covenant Defeasance, the Issuer has delivered to the Trustee an Opinion of Counsel to the effect that the Holders of the outstanding Notes will not recognize gain or loss for U.S. federal income tax purposes as a result of the deposit and Covenant Defeasance to be effected with respect to such Notes and will be subject to U.S. federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Covenant Defeasance were not to occur;

(4)              no Default with respect to the outstanding Notes has occurred and is continuing at the time of such deposit after giving effect thereto (other than a Default resulting from the borrowing of funds to be applied to such deposit and the grant of any Lien to secure such borrowing);

(5)              such Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or material instrument (other than this Indenture) to which the Issuer or any Subsidiary Guarantor is a party or by which the Issuer or any Subsidiary Guarantor is bound; and

 (6)              the Issuer shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent with respect to such Defeasance or Covenant Defeasance have been complied with.

Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) or (3) above with respect to a Defeasance or Covenant Defeasance need not to be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Issuer.

Section 8.05 Deposited Money and Government Securities to Be Held in Trust; Other Miscellaneous Provisions .

(a)              Subject to Section 8.06, all money and Government Securities (including the proceeds thereof) deposited with the Trustee pursuant to Section 8.04 in respect of the outstanding Notes shall be held in trust and applied by the Trustee, in accordance with the provisions of such Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Issuer or a Subsidiary acting as Paying Agent) as the Trustee may determine, to the Holders of all sums due and to become due thereon in respect of principal, premium, if any, and interest on the Notes, but such money need not be segregated from other funds except to the extent required by law.
 
 
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(b)              The Issuer will pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash or Government Securities deposited pursuant to Section 8.04 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders.

(c)              Anything in this Article 8 to the contrary notwithstanding, the Trustee will deliver or pay to the Issuer from time to time upon the request of the Issuer any money or Government Securities held by it as provided in Section 8.04 which, in the opinion of an Independent Financial Advisor expressed in a written certification thereof delivered to the Trustee (which may be the opinion delivered under Section 8.04(a)), are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Defeasance or Covenant Defeasance.

Section 8.06 Repayment to the Issuer .

Subject to any applicable abandoned property law, any money deposited with the Trustee or any Paying Agent, or then held by the Issuer, in trust for the payment of the principal, premium, if any, or interest on any Note and remaining unclaimed for two years after such principal, premium, if any, or interest has become due and payable shall be paid to the Issuer on its request or (if then held by the Issuer) shall be discharged from such trust; and the Holder of such Note shall thereafter look only to the Issuer for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Issuer as trustee thereof, shall thereupon cease.

Section 8.07 Reinstatement .

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

ARTICLE 9

AMENDMENT, SUPPLEMENT AND WAIVER

Section 9.01 Without Consent of Holders .
 
(a)              Notwithstanding Section 9.02, without the consent of any Holder, the Issuer and the Trustee may, at any time and from time to time, amend or supplement this Indenture:

(1)            to evidence the succession of another Person to the Issuer or a Subsidiary Guarantor and the assumption by any such successor of the covenants of the Issuer or such Subsidiary Guarantor, as applicable, under this Indenture, the Notes and the Guarantees thereof;
 
 
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(2)              to add to the covenants of the Issuer and the Subsidiary Guarantors for the benefit of the applicable Holders, or to surrender any right or power herein conferred upon the Issuer and the Subsidiary Guarantors;

(3)              to add additional Events of Default;

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

(5)              to evidence and provide for the acceptance of appointment under this Indenture by a successor Trustee; provided that the successor Trustee is otherwise qualified and eligible to act as such under the terms of this Indenture;

(6)              to provide for or confirm the issuance of Additional Notes in accordance with the terms of this Indenture;

(7)              to add a Subsidiary Guarantor in accordance with this Indenture or release a Subsidiary Guarantor from its Guarantee when permitted by the terms of this Indenture;

(8)              to cure any ambiguity, defect, omission, mistake or inconsistency;

(9)              to make any other provisions with respect to matters or questions arising under this Indenture; provided , however , that such actions pursuant to this clause (9) shall not adversely affect the interests of the Holders in any material respect, as determined in good faith by the Board of Directors of the Issuer;

(10)              to provide for the issuance of Exchange Notes, which shall be treated, together with any outstanding Notes, as a single class of securities;

(11)              to conform the text of this Indenture or the Notes to any provision of the “Description of notes” section of the Offering Memorandum to the extent the Trustee has received an Officers’ Certificate stating that such text constitutes an unintended conflict with the description of the corresponding provision in the “Description of notes” section of the Offering Memorandum;

(12)              to effect or maintain the qualification of this Indenture under the Trust Indenture Act; or

(13)              as provided in the First Supplemental Indenture to this Indenture attached as Exhibit D hereto.

Upon the request of the Issuer, and upon receipt by the Trustee of the documents described in Section 12.04, the Trustee shall join with the Issuer and the Subsidiary Guarantors in the execution of any amended or supplemental indenture authorized or permitted by the terms of this Indenture and to make any further appropriate agreements and stipulations that may be therein contained, but the Trustee shall not be obligated to enter into such amended or supplemental indenture that affects its own rights, duties or immunities under this Indenture or otherwise.

Section 9.02 With Consent of Holders .

(a)              Except as provided in Section 9.01 and this Section 9.02, with the consent of the Holders of not less than a majority in aggregate principal amount of the then outstanding Notes, the Issuer and the Trustee may amend or supplement this Indenture for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture, or of the Notes or the related Guarantees, or of modifying in any manner the rights of the Holders under this Indenture, including the definitions herein.  Section 2.08 and Section 2.09 shall determine which Notes are considered to be “outstanding” for the purposes of this Section 9.02.
 
 
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(b)              Without the consent of each affected Holder, an amendment, supplement or waiver under this Section 9.02 may not (with respect to any Notes held by a non-consenting Holder):
 
(1)              change the Stated Maturity of any Note or of any installment of interest on any Note, or reduce the amount payable in respect of the principal thereof or the rate of interest thereon or any premium payable thereon, or reduce the amount that would be due and payable on acceleration of the maturity thereof, or change the place of payment where, or the coin or currency in which, any Note or any premium or interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof, or change the date on which any Notes may be subject to redemption or reduce the redemption price therefor;

(2)              reduce the percentage in aggregate principal amount of the then outstanding Notes, the consent of whose Holders is required for any such amendment or supplement, or the consent of whose Holders is required for any waiver of compliance with covenants relating to the payment of principal of or premium, if any, or interest on the Notes or related defaults or Events of Default and their consequences (except with respect to a rescission or acceleration of the Notes by the Holders of a majority in aggregate principal amount of the Notes then outstanding, and a waiver of the Event of Default under Section 6.01(1) or 6.01(2) that resulted from such acceleration) provided for in this Indenture;

(3)              modify the obligations of the Issuer to make offers to purchase upon a Change of Control if such modification was done after the occurrence of the related Change of Control;

(4)              modify or change any provision of this Indenture affecting the ranking of the Notes in a manner adverse to the applicable Holders; or

(5)              modify any of the provisions of this Section 9.02(b) or provisions relating to waiver of compliance with covenants relating to the payment of principal of or premium, if any, or interest on the Notes or related defaults or Events of Default and their consequences (except with respect to a rescission or acceleration of the Notes by the Holders of a majority in aggregate principal amount of the Notes then outstanding, and a waiver of the Event of Default under Section 6.01(1) or 6.01(2) that resulted from such acceleration), except to increase any such percentage required for such actions or to provide that such other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each outstanding Note issued thereunder that is affected thereby;

(c)              Upon the request of the Issuer, and upon the filing with the Trustee of evidence reasonably satisfactory to the Trustee of the consent of the Holders as aforesaid, and upon receipt by the Trustee of the documents described in Section 7.02 and Section 12.04, the Trustee shall join with the Issuer and the Subsidiary Guarantors in the execution of such amended or supplemental indenture unless such amended or supplemental indenture directly affects the Trustee’s own rights, duties or immunities under this Indenture, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such amended or supplemental indenture.

(d)              It shall not be necessary for the consent of the Holders under this Section 9.02 to approve the particular form of any proposed amendment, supplement or waiver.  It shall be sufficient if such consent approves the substance of such proposed amendment or supplement.  A consent to any amendment, supplement or waiver under this Indenture by any Holder given in connection with a tender of such Holder’s Notes will not be rendered invalid by such tender.
 
 
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(e)              A consent to any amendment, supplement or waiver of this Indenture or the Notes or the Guarantee by any Holder given in connection with a tender of such Holder’s Notes will not be rendered invalid by such tender.

Section 9.03 Compliance with Trust Indenture Act .

If this Indenture is qualified under the Trust Indenture Act, every amendment or supplement to this Indenture or the Notes shall be set forth in an amended or supplemental indenture that complies with the Trust Indenture Act as then in effect.

Section 9.04 Revocation and Effect of Consents .

(a)              Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a Note is a continuing consent by the Holder of a Note and every subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting Holder’s Note, even if notation of the consent is not made on any Note.  However, any such Holder of a Note or subsequent Holder of a Note may revoke the consent as to its Note if the Trustee receives written notice of revocation before the date the waiver, supplement or amendment becomes effective.  An amendment, supplement or waiver becomes effective in accordance with its terms and thereafter binds every Holder.

(b)              The Issuer may, but shall not be obligated to, fix a record date pursuant to Section 1.05 for the purpose of determining the Holders entitled to consent to any amendment, supplement or waiver.

Section 9.05 Notation on or Exchange of Notes .

(a)              The Trustee may place an appropriate notation about an amendment, supplement or waiver on any Note thereafter authenticated.  The Issuer in exchange for all Notes may issue and the Trustee shall, upon receipt of an Authentication Order and any other deliverables required hereunder, authenticate new Notes that reflect the amendment, supplement or waiver.

(b)              Failure to make the appropriate notation or issue a new Note shall not affect the validity and effect of such amendment, supplement or waiver.

Section 9.06 Trustee to Sign Amendments, etc .

The Trustee shall sign any amendment, supplement or waiver authorized pursuant to this Article 9 if the amendment, supplement or waiver does not adversely affect the rights, duties, liabilities or immunities of the Trustee.  In executing any amendment, supplement or waiver, the Trustee shall be entitled to receive and (subject to Section 7.01) shall be fully protected in relying upon, in addition to the documents required by Section 12.04, an Officers’ Certificate and an Opinion of Counsel stating that the execution of such amendment, supplement or waiver is authorized or permitted by this Indenture and that such amendment, supplement or waiver is the legal, valid and binding obligation of the Issuer and any Subsidiary Guarantor party thereto, enforceable against them in accordance with its terms, subject to customary exceptions, and complies with the provisions hereof (including Section 9.03).
 
 
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ARTICLE 10

SATISFACTION AND DISCHARGE
 
 
Section 10.01 Satisfaction and Discharge .

(a)              This Indenture will be discharged, and will cease to be of further effect as to all Notes, when either:

(1)              all Notes theretofore authenticated and delivered have been delivered to the Trustee for cancellation; or

(2)              (A) all such Notes not theretofore delivered to the Trustee for cancellation have become due and payable or will become due and payable within one year or are to be called for redemption within one year (a “ Discharge ”) under irrevocable arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Issuer, and the Issuer has irrevocably deposited or caused to be deposited with the Trustee funds in an amount sufficient to pay and discharge the entire indebtedness on the Notes, not theretofore delivered to the Trustee for cancellation, for principal of, premium, if any, and accrued interest to the Stated Maturity or date fixed for redemption;

(B)              the Issuer  or the applicable Subsidiary Guarantor has paid or caused to be paid all other sums then due and payable under this Indenture by the Issuer with respect to the Notes;

(C)              the deposit will not result in a breach or violation of, or constitute a default under, any instrument (other than this Indenture) to which the Issuer or any Subsidiary Guarantor is a party or by which the Issuer or the applicable Subsidiary Guarantor is bound;

(D)              the Issuer has delivered irrevocable instructions to the Trustee under this Indenture to apply the deposited money toward the payment of the Notes at maturity or on the redemption date, as the case may be; and

(E)              the Issuer has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel each stating that all conditions precedent under this Indenture relating to the Discharge have been complied with.

(b)              Notwithstanding the satisfaction and discharge of this Indenture, if money shall have been deposited with the Trustee pursuant to subclause (A) of clause (2) of Section 10.01(a), the provisions of Section 10.02 and Section 8.06 shall survive.

Section 10.02 Application of Trust Money .

(a)              Subject to the provisions of Section 8.06, all money deposited with the Trustee pursuant to Section 10.01 shall be held in trust and applied by it, in accordance with the provisions of the Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Issuer acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal, premium, if any, and interest for whose payment such money has been deposited with the Trustee, but such money need not be segregated from other funds except to the extent required by law.

(b)              If the Trustee or Paying Agent is unable to apply any money or Government Securities in accordance with Section 10.01 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 Issuer’s and any Subsidiary Guarantor’s obligations under this Indenture, the Notes and the Guarantees shall be revived and reinstated as though no deposit had occurred pursuant to Section 10.01; provided that if the Issuer has made any payment of principal, premium, if any, or interest on any Notes because of the reinstatement of its obligations, the Issuer shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money or Government Securities held by the Trustee or Paying Agent, as the case may be.
 
 
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ARTICLE 11

GUARANTEES

Section 11.01 Guarantee .
 
(a)              Subject to this Article 11, each of the Subsidiary Guarantors hereby, jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior unsecured basis, to each Holder and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Issuer hereunder or thereunder, that: (1) the principal, premium, if any, and interest on the Notes shall be promptly paid in full when due, whether at Stated Maturity, by acceleration, redemption or otherwise, and interest on the overdue principal and interest on the Notes, if any, if lawful, and all other obligations of the Issuer to the Holders or the Trustee hereunder or under the Notes shall be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (2) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise (the obligations so guaranteed, collectively, the “ Guaranteed Obligations ”).  Failing payment by the Issuer when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately.  Each Subsidiary Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.

(b)              The Subsidiary Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, the recovery of any judgment against the Issuer, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor.  Each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuer, any right to require a proceeding first against the Issuer, protest, notice and all demands whatsoever and covenants that this Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture, or pursuant to Section 11.06.

(c)              Each of the Subsidiary Guarantors also agrees, jointly and severally, to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) Incurred by the Trustee or any Holder in enforcing any rights under this Section 11.01.

(d)              If any Holder or the Trustee is required by any court or otherwise to return to the Issuer, the Subsidiary Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to the Issuer or the Subsidiary Guarantors, any amount paid either to the Trustee or such Holder, this Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect.

(e)              Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Guaranteed Obligations until payment in full of all Guaranteed Obligations.  Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (1) the maturity of the Guaranteed Obligations may be accelerated as provided in Article 6 for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations, and (2) 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 the Subsidiary Guarantors for the purpose of this Guarantee.  The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantees.
 
 
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(f)              Each Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Issuer for liquidation or reorganization, should the Issuer become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Issuer’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes or the Guarantees, whether as a “voidable preference,” “fraudulent transfer” or otherwise, all as though such payment or performance had not been made.  In the event that any payment or any part thereof, is rescinded, reduced, restored or returned, the Notes shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.

(g)              In case any provision of any Guarantee shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

(h)              Each payment to be made by a Subsidiary Guarantor in respect of its Guarantee shall be made without set-off, counterclaim, reduction or diminution of any kind or nature.

Section 11.02 Limitation on Subsidiary Guarantor Liability .

Each Subsidiary Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Guarantee of such Subsidiary Guarantor not constitute a fraudulent conveyance or a fraudulent transfer for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to any Guarantee.  To effectuate the foregoing intention, the Trustee, the Holders and the Subsidiary Guarantors hereby irrevocably agree that the obligations of each Subsidiary Guarantor shall be limited to the maximum amount as will, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Subsidiary Guarantor that are relevant under such laws and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Subsidiary Guarantor in respect of the obligations of such other Subsidiary Guarantor under this Article 11, result in the obligations of such Subsidiary Guarantor under its Guarantee not constituting a fraudulent conveyance or fraudulent transfer under applicable law.  Each Subsidiary Guarantor that makes a payment under its Guarantee will be entitled upon payment in full of all Guaranteed Obligations under this Indenture to a contribution from each other Subsidiary Guarantor in an amount equal to such other Subsidiary Guarantor’s pro rata portion of such payment based on the respective net assets of all the Subsidiary Guarantors at the time of such payment, determined in accordance with GAAP.
 
 
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Section 11.03 Execution and Delivery .

(a)              To evidence its Guarantee set forth in Section 11.01, each Subsidiary Guarantor hereby agrees that this Indenture or a supplemental indenture to this Indenture shall be executed on behalf of such Subsidiary Guarantor by an Officer or person holding an equivalent title.

(b)              Each Subsidiary Guarantor hereby agrees that its Guarantee set forth in Section 11.01 shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Guarantee on the Notes.

(c)              If an Officer whose signature is on this Indenture or a supplemental indenture to this Indenture no longer holds that office at the time the Trustee authenticates the Note, the Guarantees shall be valid nevertheless.

(d)              The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Guarantee set forth in this Indenture on behalf of the Subsidiary Guarantors.

Section 11.04 Subrogation .

Each Subsidiary Guarantor shall be subrogated to all rights of Holders against the Issuer in respect of any amounts paid by any Subsidiary Guarantor pursuant to the provisions of Section 11.01; provided that, if an Event of Default has occurred and is continuing, no Subsidiary Guarantor shall be entitled to enforce or receive any payments arising out of, or based upon, such right of subrogation until all amounts then due and payable by the Issuer under this Indenture or the Notes shall have been paid in full.

Section 11.05 Benefits Acknowledged .

Each Subsidiary Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by this Indenture and that the guarantee and waivers made by it pursuant to its Guarantee are knowingly made in contemplation of such benefits.

Section 11.06 Release of Guarantees .

(a)              A Guarantee by a Subsidiary Guarantor shall be automatically and unconditionally released and discharged, and no further action by such Guarantor, the Issuer or the Trustee shall be required for the release of such Subsidiary Guarantor’s Guarantee, upon:

(1)(i)              upon the sale or other disposition (including by way of a consolidation or merger) of such Subsidiary Guarantor;

(ii)              upon the sale or disposition of all or substantially all assets of such Subsidiary Guarantor;

(iii)              at such time as such Subsidiary Guarantor no longer guarantees any (i) Credit Agreement or (ii) Material Capital Markets Debt of the Issuer or any Subsidiary Guarantor;

(iv)              upon defeasance of the Notes, as provided under Article 8;
 
 
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(v) at such time as such Subsidiary Guarantor is no longer a Restricted Subsidiary; or

(vi) as described under Article 9

in the case of Section 11.06(a)(1)(i) and (ii), other than to the Issuer or a Restricted Subsidiary of the Issuer; and

(2)              such Subsidiary Guarantor delivering to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for in this Indenture relating to such release have been complied with.

(b)              At the written request of the Issuer, the Trustee shall execute and deliver any documents reasonably required in order to evidence such release, discharge and termination in respect of the applicable Guarantee.

ARTICLE 12

MISCELLANEOUS

Section 12.01 Trust Indenture Act Controls .

If any provision of this Indenture limits, qualifies or conflicts with the duties imposed by Trust Indenture Act Section 318(c) in respect of Sections of the Trust Indenture Act that are incorporated by reference in this Indenture pursuant to Section 1.04, the imposed duties shall control.

Section 12.02 Notices .

(a)              Any notice or communication to the Issuer, any Subsidiary Guarantor or the Trustee is duly given if in writing and (1) delivered in person, (2) mailed by first-class mail (certified or registered, return receipt requested), postage prepaid, or overnight air courier guaranteeing next day delivery or (3) sent by facsimile or electronic transmission, to its address:

if to the Issuer or any Subsidiary Guarantor:

Blue Cube Spinco Inc.
c/o Olin Corporation
190 Carondelet Plaza, Suite 1530
Clayton, Missouri 63105
Fax No.: (314) 480 - 1487
Email: sccurley@olin.com
Attention: Stephen C. Curley

if to the Trustee:
U.S. Bank National Association
60 Livingston Avenue
EP-MN-WS3C
St. Paul, Minnesota 55107
Fax No.: (651) 466 - 7430
Email: donald.hurrelbrink@usbank.com
Attention: Donald T. Hurrelbrink
 
 
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The Issuer, any Subsidiary Guarantor or the Trustee, by like notice, may designate additional or different addresses for subsequent notices or communications.
(b)              All notices and communications (other than those sent to Holders) shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; five calendar days after being deposited in the mail, postage prepaid, if mailed by first-class mail; the next Business Day after timely delivery to the courier, if mailed by overnight air courier guaranteeing next day delivery; when receipt acknowledged, if sent by facsimile or electronic transmission; provided that any notice or communication delivered to the Trustee shall be deemed effective upon actual receipt thereof.

(c)              Any notice or communication to a Holder shall be mailed by first-class mail (certified or registered, return receipt requested) or by overnight air courier guaranteeing next day delivery to its address shown on the Note Register or by such other delivery system as the Trustee agrees to accept or otherwise in accordance with the procedures of the Depositary.  Any notice or communication shall also be so delivered to any Person described in Trust Indenture Act Section 313(c), to the extent required by the Trust Indenture Act.  Failure to mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders.

(d)              Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice.  Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.

(e)              Notwithstanding any other provision herein, where this Indenture provides for notice of any event to any Holder of an interest in a Global Note (whether by mail or otherwise), such notice shall be sufficiently given if given to the Depositary for such Note (or its designee), according to the applicable procedures of such Depositary, if any, prescribed for the giving of such notice.

(f)              The Trustee agrees to accept and act upon notice, instructions or directions pursuant to this Indenture sent by unsecured facsimile or electronic transmission; provided , however , that (1) the party providing such written notice, instructions or directions, subsequent to such transmission of written instructions, shall provide the originally executed instructions or directions to the Trustee in a timely manner, and (2) such originally executed notice, instructions or directions shall be signed by an authorized representative of the party providing such notice, instructions or directions.  The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reasonable reliance upon and compliance with such notice, instructions or directions notwithstanding such notice, instructions or directions conflict or are inconsistent with a subsequent notice, instructions or directions.

(g)              If a notice or communication is sent in the manner provided above within the time prescribed, it is duly given, whether or not the addressee receives it.

(h)              If the Issuer mails a notice or communication to Holders, it shall mail a copy to the Trustee and each Agent at the same time.

Section 12.03 Communication by Holders with Other Holders .

Holders may communicate pursuant to Trust Indenture Act Section 312(b) with other Holders with respect to their rights under this Indenture or the Notes.  The Issuer, the Subsidiary Guarantors, the Trustee, the Registrar and anyone else shall have the protection of Trust Indenture Act Section 312(c).
 
 
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Section 12.04 Certificate and Opinion as to Conditions Precedent .

Upon any request or application by the Issuer or any Subsidiary Guarantor to the Trustee to take any action under this Indenture, the Issuer or such Subsidiary Guarantor, as the case may be, shall furnish to the Trustee:

(1)              an Officers’ Certificate in form and substance reasonably satisfactory to the Trustee (which shall include the statements set forth in Section 12.05) stating that, in the opinion of the signer(s), all conditions precedent and covenants, 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 (which shall include the statements set forth in Section 12.05) stating that, in the opinion of such counsel, all such conditions precedent and covenants have been complied with.

Section 12.05 Statements Required in Certificate or Opinion .

Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than a certificate provided pursuant to Section 4.04 or Trust Indenture Act Section 314(a)(4)) shall include:

(1)              a statement that the Person 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 Person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with (and, in the case of an Opinion of Counsel, may be limited to reliance on an Officers’ Certificate as to matters of fact); and

(4)              a statement as to whether or not, in the opinion of such Person, such condition or covenant has been complied with.

Section 12.06 Rules by Trustee and Agents .

The Trustee may make reasonable rules for action by or at a meeting of Holders.  The Registrar or Paying Agent may make reasonable rules and set reasonable requirements for its functions.

Section 12.07 No Personal Liability of Directors, Officers, Employees, Members, Partners and Stockholders .

No past, present or future director, officer, employee, incorporator, member, partner or stockholder of the Issuer or any Subsidiary Guarantor, as such, shall have any liability for any obligations of the Issuer or any Subsidiary Guarantor (other than the Issuer in respect of the Notes and each Subsidiary Guarantor in respect of its Guarantee) under the Notes, the Guarantees or this Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation.
 
 
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Each Holder by accepting a Note waives and releases all such liability.  The waiver and release are part of the consideration for issuance of the Notes.

Section 12.08 Governing Law .

THIS INDENTURE, THE NOTES AND ANY GUARANTEE WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

Section 12.09 Waiver of Jury Trial .

EACH OF THE ISSUER, THE SUBSIDIARY GUARANTORS AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES, THE GUARANTEES OR THE TRANSACTIONS CONTEMPLATED HEREBY.

Section 12.10 Force Majeure .

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

Section 12.11 No Adverse Interpretation of Other Agreements .

This Indenture may not be used to interpret any other indenture, loan or debt agreement of the Issuer or its Restricted Subsidiaries or of any other Person.  Any such indenture, loan or debt agreement may not be used to interpret this Indenture.

Section 12.12 Successors .

All agreements of the Issuer in this Indenture and the Notes shall bind its successors.  All agreements of the Trustee in this Indenture shall bind its successors.  All agreements of each Subsidiary Guarantor in this Indenture shall bind its successors, except as otherwise provided in Section 11.06

Section 12.13 Severability .

In case any provision in this Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

Section 12.14 Counterpart Originals .

The parties may sign any number of copies of this Indenture.  Each signed copy shall be an original, but all of them together represent the same agreement.
 
 
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Section 12.15 Table of Contents, Headings, etc .

The Table of Contents, Cross-Reference Table and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part of this Indenture and shall in no way modify or restrict any of the terms or provisions hereof.

Section 12.16 Facsimile and PDF Delivery of Signature Pages .

The exchange of copies of this Indenture and of signature pages by facsimile or portable document format (“ PDF ”) transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes.  Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.

Section 12.17 U.S.A. PATRIOT Act .

The parties hereto acknowledge that in accordance with Section 326 of the U.S.A. PATRIOT Act, the Trustee is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee.  The parties to this Indenture agree that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements of the U.S.A. PATRIOT Act.

Section 12.18 Payments Due on Non-Business Days .

In any case where any Interest Payment Date, redemption date or repurchase date or the Stated Maturity of the Notes shall not be a Business Day, then (notwithstanding any other provision of this Indenture or of the Notes) payment of principal, premium, if any, or interest on the Notes need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the Interest Payment Date, redemption date or repurchase date, or at the Stated Maturity of the Notes, provided that no interest will accrue for the period from and after such Interest Payment Date, redemption date, repurchase date or Stated Maturity, as the case may be.

Section 12.19 Qualification of Indenture .

The Issuer and the Subsidiary Guarantors shall qualify this Indenture under the Trust Indenture Act in accordance with the terms and conditions of the Registration Rights Agreement and shall pay all reasonable costs and expenses (including attorneys’ fees and expenses for the Issuer, the Subsidiary Guarantors and the Trustee) incurred in connection therewith, including, but not limited to, costs and expenses of qualification of this Indenture and the Notes and printing this Indenture and the Notes.  The Trustee shall be entitled to receive from the Issuer and the Subsidiary Guarantors any such Officers’ Certificates, Opinions of Counsel or other documentation as it may reasonably request in connection with any such qualification of this Indenture under the Trust Indenture Act.

[ Signatures on following page ]
 
 
 
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BLUE CUBE SPINCO INC.
 
       
 
By:
/s/ James A. Varilek  
    Name:  James A. Varilek  
    Title:    Treasurer  
       

 
[ Signature page to Indenture for Senior Notes due 2025 ]

 
 
 
 
U.S. BANK NATIONAL ASSOCIATION, as Trustee
 
       
 
By:
/s/ Donald T. Hurrelbrink  
    Name:  Donald T. Hurrelbrink  
    Title:    Vice President  
       

 
[ Signature page to Indenture for Senior Notes due 2025 ]


Appendix A
PROVISIONS RELATING TO INITIAL NOTES,
ADDITIONAL NOTES AND EXCHANGE NOTES
 
Section 1.1                            Definitions .

(a)   Capitalized Terms .

Capitalized terms used but not defined in this Appendix A have the meanings given to them in this Indenture.  The following capitalized terms have the following meanings:

“ Applicable Procedures ” means, with respect to any transfer or transaction involving a Global Note or beneficial interest therein, the rules and procedures of the Depositary for such Global Note, Euroclear or Clearstream, in each case to the extent applicable to such transaction and as in effect from time to time.

“ Clearstream ” means Clearstream Banking, Société Anonyme, or any successor securities clearing agency.

“ Distribution Compliance Period ,” with respect to any Note, means the period of 40 consecutive days beginning on and including the later of (a) the day on which such Note is first offered to persons other than distributors (as defined in Regulation S) in reliance on Regulation S, notice of which day shall be promptly given by the Issuer to the Trustee, and (b) the date of issuance with respect to such Note or any predecessor of such Note.

“ Euroclear ” means Euroclear Bank S.A./N.Y., as operator of Euroclear systems Clearance System or any successor securities clearing agency.

“ IAI ” means an institution that is an “accredited investor” as described in Rule 501(a)(1), (2), (3) or (7) under the Securities Act and is not a QIB.

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

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

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

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

“ Unrestricted Global Note ” means any Note in global form that does not bear or is not required to bear the Restricted Notes Legend.

“ U.S. person ” means a “U.S. person” as defined in Regulation S.

(b) Other Definitions .


Term :
 
Defined in  
Section :
     
“ Agent Members ”                                                                                                                                
 
2.1(c)
“ Definitive Notes Legend ”                                                                                                                               
 
2.2(e)
“ ERISA Legend ”                                                                                                                               
 
2.2(e)
“ Global Note ”                                                                                                                               
 
2.1(b)
“ Global Notes Legend ”                                                                                                                               
 
2.2(e)
“ IAI Global Note ”                                                                                                                               
 
2.1(b)
“ Regulation S Global Note ”                                                                                                                               
 
2.1(b)
“ Regulation S Notes ”                                                                                                                               
 
2.1(a)
“ Restricted Notes Legend ”                                                                                                                               
 
2.2(e)
“ Rule 144A Global Note ”                                                                                                                               
 
2.1(b)
“ Rule 144A Notes ”                                                                                                                               
 
2.1(a)
     
 
 
Section 2.1                    Form and Dating

(a)  The Initial Notes issued on the date hereof shall be (i) offered and sold by the Issuer to the initial purchaser thereof and further transferred on the date hereof in one or more transactions to the selling securityholders identified in the Offering Memorandum and (ii) thereafter resold, initially only to (1) QIBs in reliance on Rule 144A (“ Rule 144A Notes ”) and (2) Persons other than U.S. persons in reliance on Regulation S (“ Regulation S Notes ”).  Additional Notes may also be considered to be Rule 144A Notes or Regulation S Notes, as applicable.

(b)   Global Notes .  Rule 144A Notes shall be issued initially in the form of one or more permanent global Notes in definitive, fully registered form, numbered RA-1 upward (collectively, the “ Rule 144A Global Note ”) and Regulation S Notes shall be issued initially in the form of one or more global Notes, numbered RS-1 upward (collectively, the “ Regulation S Global Note ”), in each case without interest coupons and bearing the Global Notes Legend and Restricted Notes Legend, which shall be deposited on behalf of the purchasers of the Notes represented thereby with the Custodian, and registered in the name of the Depositary or a nominee of the Depositary, duly executed by the Issuer and authenticated by the Trustee as provided in the Indenture.  One or more global Notes in definitive, fully registered form without interest coupons and bearing the Global Notes Legend and the Restricted Notes Legend, numbered RIAI-1 upward (collectively, the “ IAI Global Note ”) shall also be issued on the Issue Date, deposited with the Custodian, and registered in the name of the Depositary or a nominee of the Depositary, duly executed by the Issuer and authenticated by the Trustee as provided in this Indenture to accommodate transfers of beneficial interests in the Notes to IAIs subsequent to the initial distribution.  The Rule 144A Global Note, the IAI Global Note, the Regulation S Global Note and any Unrestricted Global Note are each referred to herein as a “ Global Note ” and are collectively referred to herein as “ Global Notes .”  Each Global Note shall represent such of the outstanding Notes as shall be specified in the “Schedule of Exchanges of Interests in the Global Note” attached thereto and each shall provide that it shall represent the aggregate principal amount of Notes from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes represented thereby may from time to time be reduced or increased, as applicable, to reflect exchanges and redemptions.  Any endorsement of a Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of outstanding Notes represented thereby shall be made by the Trustee or the Custodian, at the direction of the Trustee, in accordance with instructions given by the Holder thereof as required by Section 2.06 of this Indenture and Section 2.2(c) of this Appendix A.

(c)   Book-Entry Provisions .  This Section 2.1(c) shall apply only to a Global Note deposited with or on behalf of the Depositary.
 
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The Issuer shall execute and the Trustee shall, in accordance with this Section 2.1(c) and Section 2.02 of this Indenture and pursuant to an order of the Issuer signed by one Officer of the Issuer, authenticate and deliver initially one or more Global Notes that (i) shall be registered in the name of the Depositary for such Global Note or Global Notes 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 Custodian.

Members of, or participants in, the Depositary (“ Agent Members ”) shall have no rights under the Indenture with respect to any Global Note held on their behalf by the Depositary or by the Trustee as Custodian or under such Global Note, and the Depositary may be treated by the Issuer, the Trustee and any agent of the Issuer or the Trustee as the absolute owner of such Global Note for all purposes whatsoever.  Notwithstanding the foregoing, nothing herein shall prevent the Issuer, the Trustee or any agent of the Issuer or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and its 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 Note.

(d)   Definitive Notes .  Except as provided in Section 2.2 or Section 2.3 of this Appendix A, owners of beneficial interests in Global Notes shall not be entitled to receive physical delivery of Definitive Notes.

Section 2.2                            Transfer and Exchange .

(a)   Transfer and Exchange of Definitive Notes for Definitive Notes .  When Definitive Notes are presented to the Registrar with a request:

(i)  to register the transfer of such Definitive Notes; or

(ii)  to exchange such Definitive Notes for an equal principal amount of Definitive Notes 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 Notes surrendered for transfer or exchange:

(1)  shall be duly endorsed or accompanied by a written instrument of transfer in form reasonably satisfactory to the Issuer and the Registrar, duly executed by the Holder thereof or his attorney duly authorized in writing; and

(2)  in the case of Transfer Restricted Notes, must be transferred or exchanged pursuant to an effective registration statement under the Securities Act or pursuant to Section 2.2(b) of this Appendix A or otherwise in accordance with the Restricted Notes Legend, and are accompanied by a certification from the transferor in the form provided on the reverse side of the Form of Note in Exhibit A for exchange or registration of transfers and, as applicable, delivery of such legal opinions, certifications and other information as may be requested pursuant thereto.

(b)   Restrictions on Transfer of a Definitive Note for a Beneficial Interest in a Global Note .  A Definitive Note may not be exchanged for a beneficial interest in a Global Note except upon satisfaction of the requirements set forth below.  Upon receipt by the Trustee of a Definitive Note, duly endorsed or accompanied by a written instrument of transfer in form reasonably satisfactory to the Issuer and the Registrar, together with:
 
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(i) a certification from the transferor in the form provided on the reverse side of the Form of Note in Exhibit A for exchange or registration of transfers and, as applicable, delivery of such legal opinions, certifications and other information as may be requested pursuant thereto; and

(ii) written instructions directing the Trustee to make, or to direct the Custodian to make, an adjustment on its books and records with respect to such Global Note to reflect an increase in the aggregate principal amount of the Notes represented by the Global Note, such instructions to contain information regarding the Depositary account to be credited with such increase,

the Trustee shall cancel such Definitive Note and cause, or direct the Custodian to cause, in accordance with the standing instructions and procedures existing between the Depositary and the Custodian, the aggregate principal amount of Notes represented by the Global Note to be increased by the aggregate principal amount of the Definitive Note 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 Note equal to the principal amount of the Definitive Note so canceled.  If the applicable Global Note is not then outstanding, the Issuer shall issue and the Trustee shall authenticate, upon an Authentication Order, a new applicable Global Note in the appropriate principal amount.
(c)   Transfer and Exchange of Global Notes .

(i)  The transfer and exchange of Global Notes or beneficial interests therein shall be effected through the Depositary, in accordance with the Indenture (including applicable restrictions on transfer set forth in Section 2.2(d) of this Appendix A, if any) and the procedures of the Depositary therefor.  A transferor of a beneficial interest in a Global Note shall deliver to the Registrar 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 Note, or another Global Note and such account shall be credited in accordance with such order with a beneficial interest in the applicable Global Note and the account of the Person making the transfer shall be debited by an amount equal to the beneficial interest in the Global Note being transferred.

(ii)  If the proposed transfer is a transfer of a beneficial interest in one Global Note to a beneficial interest in another Global Note, the Registrar shall reflect on its books and records the date and an increase in the principal amount of the Global Note 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 Note from which such interest is being transferred.

(iii)  Notwithstanding any other provisions of this Appendix A (other than the provisions set forth in Section 2.3 of this Appendix A), a Global Note may not be transferred except as a whole and not in part if the transfer is 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)   Restrictions on Transfer of Global Notes; Voluntary Exchange of Interests in Transfer Restricted Global Notes for Interests in Unrestricted Global Notes .

(i) Transfers by an owner of a beneficial interest in a Rule 144A Global Note or an IAI Global Note to a transferee who takes delivery of such interest through another Transfer Restricted Global Note shall be made in accordance with the Applicable Procedures and the Restricted Notes Legend and only upon receipt by the Trustee of a certification from the transferor in the form provided on the reverse side of the Form of Note in Exhibit A for exchange or registration of transfers and, as applicable, delivery of such legal opinions, certifications and other information as may be requested pursuant thereto.  In addition, in the case of a transfer of a beneficial interest in either a Regulation S Global Note or a Rule 144A Global Note for an interest in an IAI Global Note, the transferee must furnish a signed letter substantially in the form of Exhibit B to the Trustee.
 
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(ii) Prior to the expiration of the Distribution Compliance Period, (A) the Regulation S Global Note shall be a temporary global security for purposes of Rules 903 and 904 under the Securities Act, whether or not designated as such on the face of such Note, and (B) interests in the Regulation S Global Note may only be held through Euroclear or Clearstream.  During the Distribution Compliance Period, beneficial ownership interests in the Regulation S Global Note may only be sold, pledged or transferred through Euroclear or Clearstream in accordance with the Applicable Procedures, the Restricted Notes Legend on such Regulation S Global Note and any applicable securities laws of any state of the U.S.  Prior to the expiration of the Distribution Compliance Period, transfers by an owner of a beneficial interest in the Regulation S Global Note to a transferee who takes delivery of such interest through a Rule 144A Global Note or an IAI Global Note shall be made only in accordance with the Applicable Procedures and the Restricted Notes Legend and upon receipt by the Trustee of a written certification from the transferor of the beneficial interest in the form provided on the reverse side of the Form of Note in Exhibit A for exchange or registration of transfers.  Such written certification shall no longer be required after the expiration of the Distribution Compliance Period.  Upon the expiration of the Distribution Compliance Period, beneficial ownership interests in the Regulation S Global Note shall be transferable in accordance with applicable law and the other terms of the Indenture.

(iii)  Upon the expiration of the Distribution Compliance Period, beneficial interests in the Regulation S Global Note may be exchanged for beneficial interests in an Unrestricted Global Note upon certification in the form provided on the reverse side of the Form of Note in Exhibit A for an exchange from a Regulation S Global Note to an Unrestricted Global Note.

(iv)  Beneficial interests in a Transfer Restricted Note that is a Rule 144A Global Note or an IAI Global Note may be exchanged for beneficial interests in an Unrestricted Global Note if the Holder certifies in writing to the Registrar that its request for such exchange is in respect of a transfer made in reliance on Rule 144 (such certification to be in the form set forth on the reverse side of the Form of Note in Exhibit A ) and/or upon delivery of such legal opinions, certifications and other information as the Issuer or the Trustee may reasonably request.

(v)  If no Unrestricted Global Note is outstanding at the time of a transfer contemplated by the preceding clauses (iii) and (iv), the Issuer shall issue and the Trustee shall authenticate, upon an Authentication Order, a new Unrestricted Global Note in the appropriate principal amount.

(e)   Legends .

(i)  Except as permitted by Section 2.2(d), this Section 2.2(e) and Section 2.2(i) of this Appendix A, each Note certificate evidencing the Global Notes and the Definitive Notes (and all Notes issued in exchange therefor or in substitution thereof) shall bear a legend in substantially the following form (each defined term in the legend being defined as such for purposes of the legend only) (“ Restricted Notes Legend ”):

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS [ IN THE CASE OF RULE 144A NOTES: ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF, THE ORIGINAL ISSUE DATE OF THE ISSUANCE OF ANY ADDITIONAL
 
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NOTES AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY)] [ IN THE CASE OF REGULATION S NOTES: 40 DAYS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF, THE ORIGINAL ISSUE DATE OF THE ISSUANCE OF ANY ADDITIONAL NOTES AND THE DATE ON WHICH THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) WAS FIRST OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN RULE 902 OF REGULATION S UNDER THE SECURITIES ACT) IN RELIANCE ON REGULATION S], ONLY (A) TO THE ISSUER OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS NOT A QUALIFIED INSTITUTIONAL BUYER AND THAT IS PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF SECURITIES OF AT LEAST $250,000 OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/ OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.  [ IN THE CASE OF REGULATION S NOTES: BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT.]
 
Each Definitive Note shall bear the following additional legend (“ Definitive Notes Legend ”):

IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH REGISTRAR AND TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.
 
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Each Global Note shall bear the following additional legend (“ Global Notes 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 ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS 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.

Each Note shall bear the following additional legend (“ ERISA Legend ”):
BY ITS ACQUISITION OF THIS SECURITY, THE HOLDER THEREOF WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT EITHER (1) NO PORTION OF THE ASSETS USED BY SUCH HOLDER TO ACQUIRE OR HOLD THIS SECURITY CONSTITUTES THE ASSETS OF AN EMPLOYEE BENEFIT PLAN THAT IS SUBJECT TO TITLE I OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OF A PLAN, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER ARRANGEMENT THAT IS SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”) OR PROVISIONS UNDER ANY OTHER FEDERAL, STATE, LOCAL, NON-U.S. OR OTHER LAWS OR REGULATIONS THAT ARE SIMILAR TO SUCH PROVISIONS OF ERISA OR THE CODE (“SIMILAR LAWS”), OR OF AN ENTITY WHOSE UNDERLYING ASSETS ARE CONSIDERED TO INCLUDE “PLAN ASSETS” OF ANY SUCH PLAN, ACCOUNT OR ARRANGEMENT, OR (2) THE ACQUISITION AND HOLDING OF THIS SECURITY WILL NOT CONSTITUTE A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR A SIMILAR VIOLATION UNDER ANY APPLICABLE SIMILAR LAWS.
(ii)  Upon any sale or transfer of a Transfer Restricted Note that is a Definitive Note, the Registrar shall permit the Holder thereof to exchange such Transfer Restricted Note for a Definitive Note that does not bear the Restricted Notes Legend and the Definitive Notes Legend and rescind any restriction on the transfer of such Transfer Restricted Note if the Holder certifies in writing to the Registrar that its request for such exchange is in respect of a transfer made in reliance on Rule 144 (such certification to be in the form set forth on the reverse side of the Form of Note in Exhibit A ) and provides such legal opinions, certifications and other information as the Issuer or the Trustee may reasonably request.
 
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(iii)  After a transfer of any Initial Notes or Additional Notes during the period of the effectiveness of a Shelf Registration Statement with respect to such Initial Notes or Additional Notes, as the case may be, all requirements pertaining to the Restricted Notes Legend on such Initial Notes or Additional Notes shall cease to apply and the requirements that any such Initial Notes or Additional Notes be issued in global form shall continue to apply.

(iv)  Upon the consummation of an Exchange Offer with respect to the Initial Notes or Additional Notes pursuant to which Holders of such Initial Notes or Additional Notes are offered Exchange Notes in exchange for their Initial Notes or Additional Notes, all requirements pertaining to Initial Notes or Additional Notes that Initial Notes or Additional Notes be issued in global form shall continue to apply, and Exchange Notes in global form without the Restricted Notes Legend shall be available to Holders that exchange such Initial Notes or Additional Notes in such Exchange Offer.
 
(v)  Any Additional Notes sold in a registered offering shall not be required to bear the Restricted Notes Legend.

(f)   Cancellation or Adjustment of Global Note .  At such time as all beneficial interests in a Global Note have either been exchanged for Definitive Notes, transferred in exchange for an interest in another Global Note, redeemed, repurchased or canceled, such Global Note shall be returned by the Depositary to the Trustee for cancellation or retained and canceled by the Trustee.  At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for Definitive Notes, transferred in exchange for an interest in another Global Note, redeemed, repurchased or canceled, the principal amount of Notes represented by such Global Note shall be reduced and an adjustment shall be made on the books and records of the Registrar (if it is then the Custodian for such Global Note) with respect to such Global Note, by the Registrar or the Custodian, to reflect such reduction.

(g)   Obligations with Respect to Transfers and Exchanges of Notes .

(i)  To permit registrations of transfers and exchanges, the Issuer shall execute and the Trustee shall authenticate, Definitive Notes and Global Notes at the Registrar’s request.

(ii) No service charge shall be imposed in connection with any registration of transfer or exchange, but the Issuer 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 2.10, 3.06, 3.09, 4.10, 4.11 and 9.05 of this Indenture).

(iii)  Prior to the due presentation for registration of transfer of any Note, the Issuer, the Trustee, the Paying Agent or the Registrar may deem and treat the person in whose name a Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal, premium, if any, and interest on such Note and for all other purposes whatsoever, whether or not such Note is overdue, and none of the Issuer, the Trustee, the Paying Agent or the Registrar  shall be affected by notice to the contrary.

(iv)  All Notes issued upon any transfer or exchange pursuant to the terms of this Indenture shall evidence the same debt and shall be entitled to the same benefits under this Indenture as the Notes surrendered upon such transfer or exchange.

(v)  In order to effect any transfer or exchange of an interest in any Transfer Restricted Note for an interest in a Note that does not bear the Restricted Notes Legend and has not been registered under the Securities Act, if the Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel, in form reasonably acceptable to the Registrar to the effect that no registration under the Securities Act is required in respect of such exchange or transfer or the re-sale of such interest by the beneficial holder thereof, shall be required to be delivered to the Registrar and the Trustee.
 
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(h)  No Obligation of the Trustee .

(i)  The Trustee shall have no responsibility or obligation to any beneficial owner of a Global Note, 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 Notes or with respect to the delivery to any participant, member, beneficial owner or other Person (other than the Depositary) of any notice (including any notice of redemption or repurchase) or the payment of any amount, under or with respect to such Notes.  All notices and communications to be given to the Holders and all payments to be made to Holders under the Notes shall be given or made only to the registered Holders (which shall be the Depositary or its nominee in the case of a Global Note).  The rights of beneficial owners in any Global Note shall be exercised only through the Depositary subject to the 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 this Indenture or under applicable law with respect to any transfer of any interest in any Note (including any transfers between or among Depositary participants, members or beneficial owners in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by, the terms of this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.

(i)  Exchange Offer .  Upon the occurrence of the Exchange Offer in accordance with the Registration Rights Agreement, the Issuer shall issue and, upon receipt of an Authentication Order in accordance with Section 2.02 of this Indenture, the Trustee shall authenticate (i) one or more Global Notes without the Restricted Notes Legend in an aggregate principal amount equal to the principal amounts of the beneficial interests in the Global Notes tendered for acceptance by Persons that provide such certifications as are required by the Registration Rights Agreement and applicable law, and accepted for exchange in the Exchange Offer and (ii), if applicable, Definitive Notes without the Restricted Notes Legend in an aggregate principal amount equal to the principal amount of the Definitive Notes tendered for acceptance by Persons that provide in the applicable letters of transmittal such certification as are required by the Registration Rights Agreement and applicable law, and accepted for exchange in the Exchange Offer.  Concurrently with the issuance of such Notes, the Trustee shall cause the aggregate principal amount of the applicable Global Notes with the Restricted Notes Legend to be reduced accordingly, and, if applicable, the Issuer shall execute and the Trustee shall authenticate and mail to the Persons designated by the Holders of the Definitive Notes so accepted Definitive Notes without the Restricted Notes Legend in the applicable principal amount.  Any Notes that remain outstanding after the consummation of the Exchange Offer, and Exchange Notes issued in connection with the Exchange Offer, shall be treated as a single class of securities under this Indenture.

Section 2.3 Definitive Notes .

(a)  A Global Note deposited with the Depositary or with the Trustee as Custodian pursuant to Section 2.1 or issued in connection with an Exchange Offer may be transferred to the beneficial owners thereof in the form of Definitive Notes in an aggregate principal amount equal to the principal amount of such Global Note, in exchange for such Global Note, only if such transfer complies with Section 2.2 of this Appendix A and (i) the Depositary notifies the Issuer that it is unwilling or unable to continue as a Depositary for such Global Note or if at any time the Depositary ceases to be a “clearing agency” registered under the Exchange Act and, in each case, a successor depositary is not appointed by the Issuer within 90 days of such notice or after the Issuer becomes aware of such cessation, (ii) the Issuer, at its option, notifies the Trustee in writing that it elects to cause the issuance of Definitive Notes and any Agent Member requests a Definitive Note in accordance with the procedures of the Depositary, or (iii) an Event of Default has occurred and is continuing and the Registrar has received a request from the Depository.  In addition, any affiliate of the Issuer or any Subsidiary Guarantor that is a beneficial owner of all or part of a Global Note may have such affiliate’s beneficial interest transferred to such affiliate in the form of a Definitive Note by providing a written request to the Issuer and the Trustee and such Opinions of Counsel, certificates or other information as may be required by this Indenture or the Issuer or Trustee.  Notwithstanding anything to the contrary in this Section 2.3, no Regulation S Global Note may be exchanged for a Definitive Note until the end of the Distribution Compliance Period applicable to such Regulation S Global Note and receipt by the Trustee and the Issuer of any certificates required by either of them pursuant to Rule 903(b)(3)(ii)(B) under the Securities Act.
 
 
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(b)  Any Global Note that is transferable to the beneficial owners thereof pursuant to this Section 2.3 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 Note, an equal aggregate principal amount of Definitive Notes of authorized denominations.  Any portion of a Global Note transferred pursuant to this Section 2.3 shall be executed, authenticated and delivered only in denominations of $2,000 and integral multiples of $1,000 in excess thereof and registered in such names as the Depositary shall direct.  Any Definitive Note delivered in exchange for an interest in a Global Note that is a Transfer Restricted Note shall, except as otherwise provided by Section 2.2(e) of this Appendix A, bear the Restricted Notes Legend.

(c)  The registered Holder of a Global Note may grant proxies and otherwise authorize any Person, including Agent Members and Persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under this Indenture or the Notes.

(d)  In the event of the occurrence of any of the events specified in Section 2.3(a) of this Appendix A, the Issuer shall promptly make available to the Trustee a reasonable supply of Definitive Notes in fully registered form without interest coupons.
 

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EXHIBIT A
 
[FORM OF FACE OF NOTE]

[Insert the Restricted Notes Legend, if applicable, pursuant to the provisions of the Indenture]

[Insert the Global Notes Legend, if applicable, pursuant to the provisions of the Indenture]

[Insert the Definitive Notes Legend, if applicable, pursuant to the provisions of the Indenture]

[Insert the ERISA Legend, if applicable, pursuant to the provisions of the Indenture.]
 
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CUSIP [                     ]
ISIN [                     ] 1



[RULE 144A][REGULATION S][IAI][GLOBAL] NOTE

10.00% Senior Notes due 2025


No. [RA-__] [RS-__] [RIAI-__] [U-__]

Principal Amount [$______________], as revised by the Schedule of Exchanges of Interests in Global Security attached hereto
 

 

BLUE CUBE SPINCO INC.


promises to pay to [CEDE & CO.] [_______________] or registered assigns the principal sum [set forth on the Schedule of Exchanges of Interests in the Global Note attached hereto] [of $_______ (_______ Dollars)] on October 15, 2025.

Interest Payment Dates:  April 15 and October 15

Record Dates:  April 1 and October 1


1 Rule 144A Note CUSIP:  095370AC6

Rule 144A Note ISIN:   US095370AC65
Regulation S Note CUSIP:  U0936PAB6
Regulation S Note ISIN:  USU0936PAB68
IAI Note CUSIP: 095370AF9
IAI Note ISIN:  US095370AF96
CUSIP for Unrestricted Global Note:  095370AD4
ISIN for Unrestricted Global Note:  US095370AD49
 
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IN WITNESS HEREOF, the Issuer has caused this instrument to be duly executed.
 
Dated:
 
 
 
BLUE CUBE SPINCO INC.
 
       
 
By:
    
    Name:  
    Title:  
       

 


 


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CERTIFICATE OF AUTHENTICATION

This is one of the Notes referred to in the within-mentioned Indenture:
 
 
 
U.S. BANK NATIONAL ASSOCIATION, as Trustee
 
       
 
By:
     
   
Authorized Signatory
 
     
       

 

Dated:
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[Reverse Side of Note]

10.00% Senior Notes due 2025

Capitalized terms used herein shall have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.

1.              INTEREST.  Blue Cube Spinco Inc., a Delaware corporation (the “ Issuer ”), promises to pay interest on the principal amount of this Note at 10.00% per annum until but excluding maturity and shall pay Additional Interest, if any, payable pursuant to the Registration Rights Agreement referred to below.  The Issuer shall pay interest semi-annually in arrears on April 15 and October 15 of each year, or if any such day is not a Business Day, on the next succeeding Business Day (each, an “ Interest Payment Date ”).  Interest on the Notes shall accrue from the most recent date to which interest has been paid or, if no interest has been paid, from and including [__________]; provided that the first Interest Payment Date shall be [__________].  The Issuer shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal and premium, if any, from time to time on demand at the interest rate on the Notes to the extent lawful; it shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest (without regard to any applicable grace periods) from time to time on demand at the interest rate on the Notes to the extent lawful.  Interest shall be computed on the basis of a 360-day year comprised of twelve 30-day months.

2.              METHOD OF PAYMENT.  The Issuer shall pay interest on the Notes to the Persons who are registered holders of Notes at the close of business on the April 1 or October 1 (whether or not a Business Day), as the case may be, immediately preceding the related Interest Payment Date, even if such Notes are canceled after such Record Date and on or before such Interest Payment Date, except as provided in Section 2.12 of the Indenture with respect to defaulted interest.  Principal, premium, if any, and interest on the Notes shall be payable at the office or agency of the Issuer maintained for such purpose or, at the option of the Issuer, payment of interest and premium, if any, may be made by check mailed to the Holders at their respective addresses set forth in the Note Register; provided that payment by wire transfer of immediately available funds shall be required with respect to principal, premium, if any, and interest on all Global Notes and all other Notes the Holders of which shall have provided wire transfer instructions to the Issuer or the Paying Agent at least five Business Days prior to the applicable payment date.  Such payment shall be in such coin or currency of the United States as at the time of payment is legal tender for payment of public and private debts.

3.              PAYING AGENT AND REGISTRAR.  Initially, U.S. Bank National Association, the Trustee under the Indenture, shall act as Paying Agent and Registrar.  The Issuer may change any Paying Agent or Registrar without notice to the Holders.  The Issuer may act in any such capacity.

4.              INDENTURE.  The Issuer issued the Notes under an Indenture, dated as of October 5, 2015, between Blue Cube Spinco Inc. and the Trustee (as amended or supplemented from time to time, the “ Indenture ”).  This Note is one of a duly authorized issue of notes of the Issuer designated as its 10.00% Senior Notes due 2025.  The Issuer shall be entitled to issue Additional Notes pursuant to Section 2.01 and 4.06 of the Indenture.  The Notes and any Additional Notes issued under the Indenture shall be treated as a single class of securities under the Indenture.  The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended.  The Notes are subject to all such terms, and Holders are referred to the Indenture and the Trust Indenture Act for a statement of such terms.  Any term used in this Note that is defined in the Indenture shall have the meaning assigned to it in the Indenture.  To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling.
 
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5.              REDEMPTION AND REPURCHASE.  The Notes are subject to optional redemption, and may be the subject of an Offer to Purchase, as further described in the Indenture.  The Issuer shall not be required to make mandatory redemption or sinking fund payments with respect to the Notes.

6.              DENOMINATIONS, TRANSFER, EXCHANGE.  The Notes are in registered form without coupons in denominations of $2,000 and integral multiples of $1,000 in excess thereof.  The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture.  The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents, and Holders shall be required to pay any taxes and fees required by law or permitted by the Indenture.  The Issuer need not exchange or register the transfer of any Note or portion of a Note selected for redemption or tendered for repurchase in connection with a Change of Control Offer or Asset Sale Offer, except for the unredeemed portion of any Note being redeemed or repurchased in part.

7.              PERSONS DEEMED OWNERS.  The registered Holder of a Note may be treated as its owner for all purposes.

8.              AMENDMENT, SUPPLEMENT AND WAIVER.  The Indenture, the Guarantees or the Notes may be amended or supplemented as provided in the Indenture.

9.              DEFAULTS AND REMEDIES.  The Events of Default relating to the Notes are defined in Section 6.01 of the Indenture.  Upon the occurrence of an Event of Default, the rights and obligations of the Issuer, the Subsidiary Guarantors, the Trustee and the Holders shall be as set forth in the applicable provisions of the Indenture.

10.              AUTHENTICATION.  This Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose until authenticated by the manual signature of the Trustee.

11.              ADDITIONAL RIGHTS OF HOLDERS OF TRANSFER RESTRICTED NOTES.  In addition to the rights provided to Holders under the Indenture, Holders of Transfer Restricted Notes shall have all the rights set forth in a Registration Rights Agreement, including the right to receive Additional Interest if payable thereunder.

12.              GOVERNING LAW.  THIS NOTE WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

13.              CUSIP AND ISIN NUMBERS.  Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Issuer has caused CUSIP and ISIN numbers to be printed on the Notes, and the Trustee may 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 Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.

The Issuer shall furnish to any Holder upon written request and without charge a copy of the Indenture and the Registration Rights Agreement.
 
A-6
 
ASSIGNMENT FORM

 
To assign this Note, fill in the form below to:
 
 
(I) or (we) assign and transfer this note to:
 
 
 (Insert assignee’s legal name)
   
 
 
 
(Insert assignee’s soc. sec. or tax I.D. no.)
 
 
 
 
 
(Print or type assignee’s name, address and zip code)
and irrevocably appoint
 
to transfer this Note on the books of the Issuer.  The agent may substitute another to act for him.
 
 
Date:  _____________________
 
 
 
 
 
Your Signature:
 
   
(Sign exactly as your name appearson
the face of this Note)
     
 
                                                                                                                                                                                                                                                                                                                                                                        

 
Signature Guarantee*:  __________________________________

* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
 
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CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR
REGISTRATION OF TRANSFERS OF TRANSFER RESTRICTED NOTES


This certificate relates to $_________ principal amount of Notes held in (check applicable space) ____ book-entry or _____ definitive form by the undersigned.

The undersigned (check one box below):
 
☐
has requested the Trustee by written order to deliver in exchange for its beneficial interest in a Global Note held by the Depositary a Note or Notes in definitive, registered form of authorized denominations and an aggregate principal amount equal to its beneficial interest in such Global Note (or the portion thereof indicated above) in accordance with the Indenture; or
   
☐
 has requested the Trustee by written order to exchange or register the transfer of a Note or Notes.
 
In connection with any transfer of any of the Notes evidenced by this certificate, the undersigned confirms that such Notes are being transferred in accordance with its terms:

CHECK ONE BOX BELOW
 
 
(1)
☐
to the Issuer or subsidiary thereof; or
 
 
 
 
 
(2)
☐
to the Registrar for registration in the name of the Holder, without transfer; or
 
 
 
 
 
(3)
☐
pursuant to an effective registration statement under the Securities Act of 1933, as amended (the “ Securities Act ”); or
 
 
 
 
 
(4)
☐
to a Person that the undersigned reasonably believes is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act (“ Rule 144A ”)) that purchases for its own account or for the account of a qualified institutional buyer and to whom notice is given that such transfer is being made in reliance on Rule 144A, in each case pursuant to and in compliance with Rule 144A; or
 
 
 
 
 
(5)
☐
pursuant to offers and sales to non-U.S. persons that occur outside the United States within the meaning of Regulation S under the Securities Act (and if the transfer is being made prior to the expiration of the Distribution Compliance Period, the Notes shall be held immediately thereafter through Euroclear or Clearstream); or
 
 
 
 
 
(6)
☐
to an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act) that has furnished to the Trustee a signed letter containing certain representations and agreements; or
 
 
 
 
 
(7)
☐
pursuant to Rule 144 under the Securities Act; or
 
 
 
 
 
(8)
☐
pursuant to another available exemption from registration under the Securities Act.
 
 
 
 
 
A-8
 
Unless one of the boxes is checked, the Trustee will refuse to register any of the Notes evidenced by this certificate in the name of any Person other than the registered Holder thereof; provided , however , that if box (5), (6), (7) or (8) is checked, the Issuer or the Trustee may require, prior to registering any such transfer of the Notes, such legal opinions, certifications and other information as the Issuer or the Trustee has reasonably requested to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act.

   
 
Your Signature
   
 
Date:
 
 
Signature of Signature
Guarantor
   
 
 
TO BE COMPLETED BY PURCHASER IF (4) ABOVE IS CHECKED.

The undersigned represents and warrants that it is purchasing this Note for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Issuer as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption from registration provided by Rule 144A.

Dated:  _____________________________________
  
 
NOTICE:                        To be executed by an executive officer
 

Signature Guarantee*:  __________________________________

* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).

 
A-9
 
 
TO BE COMPLETED IF THE HOLDER REQUIRES AN EXCHANGE FROM A
REGULATION S GLOBAL NOTE TO AN UNRESTRICTED GLOBAL NOTE,
PURSUANT TO SECTION 2.2(d)(iii) OF APPENDIX A TO THE INDENTURE 2

The undersigned represents and warrants that either:
 
 
☐
the undersigned is not a dealer (as defined in the Securities Act) and is a non-U.S. person (within the meaning of Regulation S under the Securities Act); or
   
☐
the undersigned is not a dealer (as defined in the Securities Act) and is a U.S. person (within the meaning of Regulation S under the Securities Act) who purchased interests in the Notes pursuant to an exemption from, or in a transaction not subject to, the registration requirements under the Securities Act; or
 
 
☐
the undersigned is a dealer (as defined in the Securities Act) and the interest of the undersigned in this Note does not constitute the whole or a part of an unsold allotment to or subscription by such dealer for the Notes.
 
 

Dated:
 
 
Your Signature

2 Include only for Regulation S Global Notes.
 
 
 
A-10
 
 
OPTION OF HOLDER TO ELECT PURCHASE

If you want to elect to have this Note purchased by the Issuer pursuant to Section 4.10 or Section 4.11 of the Indenture, check the appropriate box below:

[   ] Section 4.10                                          [   ] Section 4.11

If you want to elect to have only part of this Note purchased by the Issuer pursuant to Section 4.10 or Section 4.11 of the Indenture, state the amount you elect to have purchased:
 
 
$
 
(integral multiples of $1,000,
 
 
   
provided that the unpurchased
portion must be in a minimum
principal amount of $2,000)
 
 
   
 
         
 
 
Date:
 
 
Your Signature:  
 
 
 
 
  (Sign exactly as your name appears on the face of this Note)
 
 
 
 
Tax Identification No.:  
 
 
 
 
   
 
                                                                                                  

Signature Guarantee*:  __________________________________

* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
 
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SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*
 
The initial outstanding principal amount of this Global Note is $__________.  The following exchanges of a part of this Global Note for an interest in another Global Note or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note for an interest in this Global Note or other increase or decrease in the principal amount of this Global Note, have been made:

Date
 
Amount of decrease
in Principal Amount of this Global Note
 
Amount of increase
in Principal
Amount of this
Global Note
 
Principal Amount of
this Global Note
following such
decrease or increase
 
Signature of authorized signatory  of Trustee
                 
                 
                 
                 
                 
                 
                 


__________________
*This schedule should be included only if the Note is issued in global form.
 
 
 

A-12
 
EXHIBIT B
 
 
FORM OF
TRANSFEREE LETTER OF REPRESENTATION


Ladies and Gentlemen:

This certificate is delivered to request a transfer of $[_______] principal amount of the 10.00% Senior Notes due 2025 (the “ Notes ”) of Blue Cube Spinco Inc. (the “ Issuer ”).

Upon transfer, the Notes would be registered in the name of the new beneficial owner as follows:

Name:________________________

Address:______________________

Taxpayer ID Number:____________

The undersigned represents and warrants to you that:

1.  We are an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended (the “ Securities Act ”)), purchasing for our own account or for the account of such an institutional “accredited investor” at least $250,000 principal amount of the Notes, and we are acquiring the Notes, for investment purposes and not with a view to, or for offer or sale in connection with, any distribution in violation of the Securities Act.  We have such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of our investment in the Notes, and we invest in or purchase securities similar to the Notes in the normal course of our business.  We, and any accounts for which we are acting, are each able to bear the economic risk of our or its investment.

2.  We understand that the Notes have not been registered under the Securities Act and, unless so registered, may not be sold except as permitted in the following sentence.  We agree on our own behalf and on behalf of any investor account for which we are purchasing Notes to offer, sell or otherwise transfer such Notes prior to the date that is one year after the later of the date of original issue and the last date on which the Issuer or any affiliate of the Issuer was the owner of such Notes (or any predecessor thereto) (the “ Resale Restriction Termination Date ”) only in accordance with the Restricted Notes Legend (as such term is defined in the indenture under which the Notes were issued) on the Notes and any applicable securities laws of any state of the United States.  The foregoing restrictions on resale will not apply subsequent to the Resale Restriction Termination Date.  If any resale or other transfer of the Notes is proposed to be made pursuant to clause (e) above prior to the Resale Restriction Termination Date, the transferor shall deliver a letter from the transferee substantially in the form of this letter to the Issuer and the Trustee, which shall provide, among other things, that the transferee is an institutional “accredited investor” within the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act and that it is acquiring such Notes for investment purposes and not for distribution in violation of the Securities Act.  Each purchaser acknowledges that the Issuer and the Trustee reserve the right prior to the offer, sale or other transfer prior to the Resale Restriction Termination Date of the Notes with respect to applicable transfers described in the Restricted Notes Legend to require the delivery of an opinion of counsel, certifications and/or other information satisfactory to the Issuer and the Trustee.
 
TRANSFEREE:
 
 ,
 
 
 
 

 
B-1
                 
 
 
 
by:
 

 
                                                          
B-2
 
EXHIBIT C
 
FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS

Supplemental Indenture (this “ Supplemental Indenture ”), dated as of [__________] [__], 20[__], among __________________ (the “ Guaranteeing Subsidiary ”), a subsidiary of Blue Cube Spinco Inc., a Delaware corporation (the “ Issuer ”), and U.S. Bank National Association, as trustee (the “ Trustee ”).

W I T N E S S E T H

WHEREAS, the Issuer has heretofore executed and delivered to the Trustee an indenture (the “ Indenture ”), dated as of October 5, 2015, providing for the issuance of an unlimited aggregate principal amount of 10.00% Senior Notes due 2025 (the “ Notes ”);

WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental indenture pursuant to which the Guaranteeing Subsidiary shall unconditionally Guarantee all of the Issuer’s Obligations under the Notes and the Indenture on the terms and conditions set forth herein and under the Indenture; and

WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute and deliver this Supplemental Indenture.

NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties mutually covenant and agree for the equal and ratable benefit of the Holders as follows:

1.              Capitalized Terms .  Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.

2.              Guarantor .  The Guaranteeing Subsidiary hereby agrees to be a Subsidiary Guarantor under the Indenture and to be bound by the terms of the Indenture applicable to Subsidiary Guarantors, including Article 11 thereof.

3.              Governing Law .  THIS SUPPLEMENTAL INDENTURE WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

4.              Waiver of Jury Trial .  EACH OF THE GUARANTEEING SUBSIDIARY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS SUPPLEMENTAL INDENTURE, THE INDENTURE, THE NOTES, THE GUARANTEES OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.

5.              Counterparts .  The parties may sign any number of copies of this Supplemental Indenture.  Each signed copy shall be an original, but all of them together represent the same agreement.

6.              Trustee Makes No Representation .   The Trustee makes no representation as to the validity or sufficiency of this Supplemental Indenture.
 

C-1
 
7.              Headings .  The headings of the Sections of this Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part of this Supplemental Indenture and shall in no way modify or restrict any of the terms or provisions hereof.

 
C-2

IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed, all as of the date first above written.
 
 
 
 
[NAME OF GUARANTEEING SUBSIDIARY]
 
       
 
By:
    
    Name:  
    Title:  
       

 
 
U.S. BANK NATIONAL ASSOCIATION, as Trustee
 
       
 
By:
    
    Name:  
    Title:  
       
 
C-3
 
EXHIBIT D
 
FIRST SUPPLEMENTAL INDENTURE

FIRST SUPPLEMENTAL INDENTURE, dated as of October 5, 2015 (this “ First Supplemental Indenture ”), among Blue Cube Spinco Inc., a Delaware corporation (the “ Issuer ”), Olin Corporation, a Virginia corporation (the “ Parent ”), and U.S. Bank National Association, as trustee (the “ Trustee ”), to that certain indenture dated as of October 5, 2015 between the Issuer and the Trustee (the “ Base Indenture ” and, together with the First Supplemental Indenture, the “ Indenture ”).

WITNESSETH :

WHEREAS, capitalized terms used and not defined herein shall have the meanings ascribed to such terms in the Base Indenture;

WHEREAS, the Issuer executed and delivered to the Trustee the Base Indenture, providing for the issuance of the Issuer’s 10.00% Senior Notes due 2025 (the “ Notes ”);

WHEREAS, Section 9.01 of the Base Indenture provides that the Issuer and the Trustee may amend or supplement the Base Indenture without the consent of Holders as provided in this First Supplemental Indenture;

WHEREAS, all conditions and requirements necessary to make this First Supplemental Indenture a valid and binding instrument in accordance with its terms and the terms of the Base Indenture have been satisfied; and

WHEREAS, the   Issuer, the Parent and the Trustee desire to execute and deliver this First Supplemental Indenture.

NOW, THEREFORE, in consideration of the premises and of the mutual covenants herein contained, the Issuer, the Parent and the Trustee hereby agree as follows:

Section 1.                            Amendments to the Base Indenture .

1.01.              The following definitions in Section 1.01 “Definitions” are hereby amended and restated in their entirety or added to Section 1.01 if not therein, as applicable, as follows:

“ Acquired Debt ” means Debt (1) of a Person (including an Unrestricted Subsidiary) existing at the time such Person becomes a Restricted Subsidiary, or is merged with or into the Parent or a Restricted Subsidiary, or (2) assumed in connection with the acquisition of assets from such Person. Acquired Debt shall be deemed to have been incurred, with respect to clause (1) of the preceding sentence, on the date such Person becomes a Restricted Subsidiary and, with respect to clause (2) of the preceding sentence, on the date of consummation of such acquisition of assets.

“ Asset Acquisition ” means:

(1) an Investment by the Parent or any Restricted Subsidiary in any other Person pursuant to which such Person shall become a Restricted Subsidiary, or shall be merged with or into the Parent or any Restricted Subsidiary; or

(2) the acquisition by the Parent or any Restricted Subsidiary of the assets of any Person which constitute all or substantially all of the assets of such Person, any division or line of business of such Person or any other properties or assets of such Person other than in the ordinary course of business and consistent with past practices.
D-1
 
“ Asset Sale ” means any transfer, conveyance, sale, lease or other disposition (including, without limitation, dispositions pursuant to any consolidation or merger) by the Parent or any of its Restricted Subsidiaries to any Person in any single transaction or series of transactions of:

(i) Capital Stock in another Person (other than directors’ qualifying shares or shares or interests required to be held by foreign nationals pursuant to local law); or

(ii) any other property or assets (other than in the normal course of business, including any sale or other disposition of obsolete or permanently retired equipment);

provided, however , that the term “Asset Sale” shall exclude:

(1) any asset disposition permitted by Section 5.01 that constitutes a disposition of all or substantially all of the assets of the Parent and its Restricted Subsidiaries taken as a whole;

(2) any transfer, conveyance, sale, lease or other disposition of property or assets, the gross proceeds of which (exclusive of indemnities) do not exceed in any one or related series of transactions $25.0 million;

(3) sales or other dispositions of cash or Eligible Cash Equivalents;

(4) sales of interests in Unrestricted Subsidiaries;

(5) the sale and leaseback of any assets within 90 days of the acquisition thereof; provided that any assets acquired in the Transactions shall be deemed to have been acquired on the Issue Date;

(6) the disposition of assets that, in the good faith judgment of the Parent, are no longer used or useful in the business of such entity;

(7) a Restricted Payment or Investment that is otherwise permitted by this Indenture;

(8) any trade-in of equipment in exchange for other equipment; provided, however that in the good faith judgment of the Parent, the Parent or such Restricted Subsidiary receives equipment having a fair market value equal to or greater than the equipment being traded in;

(9) the creation of a Lien (but not the sale or other disposition of the property subject to such Lien);

(10) leases or subleases in the ordinary course of business to third persons not interfering in any material respect with the business of the Parent or any of its Restricted Subsidiaries and otherwise in accordance with the provisions of this Indenture;

(11) any disposition by a Restricted Subsidiary to the Parent or by the Parent or a Restricted Subsidiary to a Restricted Subsidiary;
 

D-2
 
(12) dispositions of accounts receivable in connection with the collection or compromise thereof in the ordinary course of business and consistent with past practice;

(13) licensing or sublicensing of intellectual property or other general intangibles in accordance with industry practice in the ordinary course of business;

(14) any transfer of accounts receivable, or a fractional undivided interest therein, by a Receivable Subsidiary in a Qualified Receivables Transaction; or

(15) sales of accounts receivable to a Receivable Subsidiary pursuant to a Qualified Receivables Transaction for the fair market value thereof as determined by the Parent in good faith; including cash or other financial accommodation, such as the provision of letters of credit by such Receivable Subsidiary on behalf of or for the benefit of the transferor of such accounts receivable, in an amount at least equal to 75% of the fair market value thereof as determined by the Parent in good faith (for the purposes of this clause (15), Purchase Money Notes will be deemed to be cash).

For purposes of this definition, any series of related transactions that, if effected as a single transaction, would constitute an Asset Sale, shall be deemed to be a single Asset Sale effected when the last such transaction which is a part thereof is effected.

“ Board of Directors ” means:

(1)              with respect to the Parent or any Subsidiary, its board of directors or any duly authorized committee thereof;

(2)              with respect to a corporation, the board of directors of such corporation or any duly authorized committee thereof; and

(3)              with respect to any other entity, the board of directors or similar body of the general partner or managers of such entity or any duly authorized committee thereof.

“ Change of Control ” means the occurrence of any of the following after the Issue Date:

(1)              the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the property and assets of the Parent and its Subsidiaries, taken as a whole, to any “person” (as that term is used in Section 13(d)(3) of the Exchange Act), other than the Parent or one of the Parent’s wholly-owned Subsidiaries;

(2)              the adoption of a plan relating to the liquidation or dissolution of the Parent or the Issuer;

(3)              the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any “person” (as that term is used in Section 13(d)(3) of the Exchange Act) becomes the beneficial owner, directly or indirectly, of more than 50% of the Parent’s Voting Stock, measured by voting power rather than number of shares;

(4)              the merger or consolidation of the Parent with or into another Person or the merger of another Person with or into the Parent or the merger of any Person with or into a Subsidiary of the Parent, unless the holders of a majority of the aggregate voting power of the Voting Stock of the Parent, immediately prior to such transaction, hold securities of the surviving or transferee Person that represent, immediately after such transaction, at least a majority of the aggregate voting power of the Voting Stock of the surviving or transferee Person;
 
D-3
 
(5)              the Parent ceases to own, directly or indirectly, 100% of all outstanding equity interests of the Issuer (except as a result of the merger of the Issuer with and into the Parent); or

(6)              for so long as any of the Existing Notes remain outstanding, the first day on which a majority of the members of the Parent’s Board of Directors are not Continuing Directors.

Notwithstanding the foregoing, the Transactions shall not constitute a Change of Control.

Notwithstanding the foregoing, a transaction effected to create a holding company for the Parent will not be deemed to involve a Change of Control if (a) pursuant to such transaction the Parent becomes a wholly-owned Subsidiary of such holding company and (b) the holders of the Voting Stock of such holding company immediately following such transaction are the same as the holders of the Parent’s Voting Stock immediately prior to such transaction.

“ Consolidated Cost Savings ” means, for any period, those synergies, operating expense reductions and cost-savings of the Parent and its Restricted Subsidiaries that are reasonably identifiable, factually supportable and projected by the Parent in good faith to be realized following the Issue Date as a result of restructurings, reorganizations, divestitures, cost savings initiatives, production rationalizations and other similar initiatives (collectively, “ Initiatives ”) (calculated on a pro forma basis as if such synergies, operating expense reductions and cost-savings had been realized on the first day of such period, and net of the amount of actual benefits realized during such period from such Initiatives to the extent already included in Consolidated Net Income for such period); provided that (i) no synergies, operating expense reductions or cost-savings shall be added to Consolidated EBITDA pursuant to clause (e) thereof to the extent duplicative of any expenses or charges otherwise added to (or excluded from) Consolidated EBITDA, whether through a pro forma adjustment or otherwise, for such period and (ii) projected amounts (and not yet realized) (x) may be added (the date on which such amounts are added, the “ Initiative Commencement Date ”) once actions in respect of such Initiative have been taken or are expected to be taken (in the good faith determination of the Parent) within 12 months and (y) may no longer be added back in calculating Consolidated EBITDA pursuant to clause (e) thereof to the extent occurring more than six full fiscal quarters after the Initiative Commencement Date.

“ Consolidated Debt Ratio ” means, as of any date of determination, the ratio of (1) the aggregate amount of Debt of the Parent and its Restricted Subsidiaries then outstanding as of such date of determination to (2) Consolidated EBITDA for the most recent four consecutive fiscal quarters for which internal financial statements of the Parent are available, in each case with pro forma and other adjustments to each of Debt and Consolidated EBITDA to reflect any incurrences or repayments of Debt and any acquisitions or dispositions of businesses or assets since the beginning of such four consecutive fiscal quarter period (which pro forma and other adjustments will be determined in good faith by a  responsible financial or accounting officer of the Parent and shall not be required to be made in accordance with Regulation S-X promulgated by the Commission).

“ Consolidated EBITDA ” means, for any period, Consolidated Net Income for such period (adjusted to exclude all extraordinary or unusual items and any gains or losses on sales of assets outside the ordinary course of business) plus, without duplication and (except with respect to synergies included in Consolidated Cost Savings) to the extent deducted in calculating such Consolidated Net Income for such period, the sum of (a) income tax expense, (b) interest expense, amortization or writeoff of debt discount with respect to Debt, (c) depreciation and amortization expense, (d) amortization of intangibles (including, but not limited to, goodwill) and organization costs, (e) Consolidated Cost Savings; provided that with respect to any period, the aggregate amount added back in the calculation of Consolidated EBITDA for such period pursuant to this clause (e) and clause (f) below shall not exceed 20% of Consolidated EBITDA (in each case calculated prior to giving effect to any add-backs pursuant to this clause (e) and clause (f) below), (f) costs and expenses incurred in connection with the implementation of Initiatives; provided that with respect to any period, the aggregate amount added back in the calculation of Consolidated EBITDA for such period pursuant to this clause (f) and clause (e) above shall not exceed 20% of Consolidated EBITDA (in each case calculated prior to giving effect to any add-backs pursuant to this clause (f) and clause (e) above), (g) the sum (without duplication) of all non-recurring fees, costs and expenses incurred by the Parent and its Restricted Subsidiaries, whether before, on or within six months after the Merger Closing Date, in connection with the Transactions during such period; provided that the aggregate amount added back in the calculation of Consolidated EBITDA pursuant to this clause (g) shall not exceed $100,000,000, (h) all payments triggered in respect of the Parent’s non-qualified deferred compensation and post-retirement benefit plans in connection with the Transactions during such period, (i) any other non-cash charges and (j) adjustments and add-backs of the nature set forth in the Offering Memorandum under the section entitled “Summary—Summary historical and pro forma financial data”, minus, (x) any cash payments made during such period in respect of items described in clause (i) above subsequent to the fiscal quarter in which the relevant non-cash charge was reflected as a charge in the statement of Consolidated Net Income and (y) to the extent included in calculating such Consolidated Net Income for such period, any non-cash income (other than amounts accrued in the ordinary course of business under accrual-based revenue recognition procedures in accordance with GAAP).
D-4
 
“ Consolidated Fixed Charge Coverage Ratio ” means, with respect to any Person, the ratio of Consolidated EBITDA of such Person during the four full fiscal quarters for which financial statements are available (the “ Four Quarter Period ”) ending prior to the date of the transaction giving rise to the need to calculate the Consolidated Fixed Charge Coverage Ratio (the “ Transaction Date ”) to Consolidated Fixed Charges of such Person for the Four Quarter Period. In addition to and without limitation of the foregoing, for purposes of this definition, “Consolidated EBITDA” and “Consolidated Fixed Charges” shall be calculated after giving effect on a pro forma basis for the period of such calculation to:

(i)              the incurrence of any Debt of such Person or any of its Restricted Subsidiaries (and the application of the proceeds thereof) and the repayment of other Debt, other than the incurrence or repayment of Debt in the ordinary course of business for working capital purposes pursuant to working capital facilities, occurring during the Four Quarter Period or at any time subsequent to the last day of the Four Quarter Period and on or prior to the Transaction Date, as if such incurrence or repayment, as the case may be (and the application of the proceeds thereof), occurred on the first day of the Four Quarter Period; and

(ii)              any Asset Sales or Asset Acquisitions (including, without limitation, any Asset Acquisition giving rise to the need to make such calculation as a result of such Person or one of its Restricted Subsidiaries (including any Person who becomes a Restricted Subsidiary as a result of the Asset Acquisition) incurring, assuming or otherwise being liable for Acquired Debt and also including any Consolidated EBITDA attributable to the assets which are the subject of the Asset Acquisition) occurring during the Four Quarter Period or at any time subsequent to the last day of the Four Quarter Period and on or prior to the Transaction Date, as if such Asset Sale or Asset Acquisition (including the incurrence, assumption or liability for any such Acquired Debt) occurred on the first day of the Four Quarter Period.

For purposes of this definition, pro forma calculations shall be made in good faith by a responsible financial or accounting officer of the Parent and shall not be required to be made in accordance with Regulation S-X promulgated under the Securities Act, and such pro forma calculations may also include operating expense reductions for such period resulting from the Asset Sale or Asset Acquisition (as determined in good faith by senior management of the Parent) for which pro forma effect is being given (A) that have been realized or (B) for which steps have been taken or are reasonably expected to be taken within six months of the date of such transaction and are supportable and quantifiable and, in each case, including, but not limited to (a) reduction in personnel expenses, (b) reduction of costs related to administrative functions, (c) reduction of costs related to leased or owned properties and (d) reductions from the consolidation of operations and streamlining of corporate overhead.
 
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Furthermore, in calculating “Consolidated Fixed Charges” for purposes of determining the denominator (but not the numerator) of this “Consolidated Fixed Charge Coverage Ratio”:

(i)              interest on outstanding Debt determined on a fluctuating basis as of the Transaction Date and which will continue to be so determined thereafter shall be deemed to have accrued at a fixed rate per annum equal to the rate of interest on such Debt in effect on the Transaction Date;

(ii)              if interest on any Debt actually incurred on the Transaction Date may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rates, then the interest rate in effect on the Transaction Date will be deemed to have been in effect during the Four Quarter Period; and

(iii)              notwithstanding clause (i) or (ii) above, interest on Debt determined on a fluctuating basis, to the extent such interest is covered by agreements relating to Hedging Obligations, shall be deemed to accrue at the rate per annum resulting after giving effect to the operation of such agreements.

“ Consolidated Net Income ” means, for any period, the consolidated net income (or loss) of the Parent and its Restricted Subsidiaries, determined on a consolidated basis in accordance with GAAP; provided that there shall be excluded (a) the income (or deficit) of any Person accrued prior to the date it becomes a Restricted Subsidiary of the Parent or is merged into or consolidated with the Parent or any of its Restricted Subsidiaries, (b) the income (or deficit) of any Person (other than a Restricted Subsidiary of the Parent) in which the Parent or any of its Restricted Subsidiaries has an ownership interest, except to the extent that any such income is actually received by the Parent or such Subsidiary in the form of dividends or similar distributions and (c) solely for the purposes of Section 4.05, the undistributed earnings of any Restricted Subsidiary of the Parent to the extent that the declaration or payment of dividends or similar distributions by such Restricted Subsidiary is not at the time permitted by the terms of any contractual obligation or any law applicable to such Restricted Subsidiary.

“ Consolidated Net Tangible Assets ” means the total amount of the Parent’s consolidated assets after deducting therefrom (i) all current liabilities, excluding any thereof which are by their terms extendible or renewable at the option of the obligor thereon to a time more than 12 months after the time as of which the amount thereof is being computed and (ii) unamortized Debt discount and expense, goodwill, trademarks, brand names, patents and other intangible assets, all as shown on the Parent’s latest audited consolidated financial statements at the time of the determination.

“ Continuing Director ” means, as of any date of determination, any member of the Parent’s Board of Directors who (i) was a member of such Board of Directors on the first date that the Notes were issued or (ii) was nominated for election or elected to the Parent’s Board of Directors with the approval (for purposes of the Notes) of a majority of the Continuing Directors who were members of the Parent’s Board of Directors at the time of such nomination or election.
 
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“ Credit Agreement ” means the credit agreements, dated as of June 23, 2015 (as amended, supplemented or otherwise modified from time to time), among the Issuer or the Parent, as applicable, the other borrowers party thereto, Wells Fargo Bank, National Association, as administrative agent, and the other agents and lenders named therein, providing for (i) a revolving credit facility, which, upon the consummation of the Merger on the Merger Closing Date, shall provide for borrowings by the Parent and Olin Canada ULC and will be guaranteed by the Issuer and (ii) a term loan facility, which shall provide for borrowings by the Issuer and, upon the consummation of the Merger on the Merger Closing Date, will be guaranteed by the Parent, together with all related notes, letters of credit, guarantees, and any other related agreements and instruments executed and delivered in connection therewith, in each case as amended, modified, supplemented, restated, refinanced, refunded or replaced in whole or in part from time to time including by or pursuant to any agreement or instrument that exchanges, extends, refinances, renews, replaces, substitutes or otherwise restructures the maturity of any indebtedness thereunder, or increases the amount of available borrowings thereunder, or adds Subsidiaries of the Parent as additional borrowers or guarantors thereunder, in each case with respect to such agreement or any successor or replacement agreement and whether by the same or any other agent, lender, group of lenders, purchasers, institutional investors or debt holders.

“ Debt ” means any notes, bonds, debentures, loans or other similar evidences of indebtedness for money borrowed, issued, assumed or guaranteed by the Parent or any Restricted Subsidiary.

“ Debt Facility ” means one or more debt facilities (including, without limitation, the Credit Agreement and the Sumitomo Credit Agreement) or commercial paper facilities with banks or other institutional lenders providing for revolving credit loans, term loans, receivables financing (including through the sale of receivables to such lenders or to special purpose entities formed to borrow from such lenders against such receivables) or letters of credit or issuances of debt securities evidenced by notes, debentures, bonds or similar instruments, in each case, as amended, restated, modified, renewed, refunded, replaced or refinanced (including by means of sales of debt securities) in whole or in part from time to time (and whether or not with the original administrative agent, lenders or trustee or another administrative agent or agents, other lenders or trustee and whether provided under the original Credit Agreement and the original Sumitomo Credit Agreement or any other credit or other agreement or indenture).

“ Designated Non-cash Consideration ” means the fair market value as determined in good faith by the Parent of non-cash consideration received by the Parent or a Restricted Subsidiary in connection with an Asset Sale that is so designated as Designated Non-cash Consideration pursuant to an Officers’ Certificate, setting forth the basis of such valuation less the amount of cash or Eligible Cash Equivalents received in connection with a subsequent sale of or collection on such Designated Non-cash Consideration.

“ Eligible Cash Equivalents ” means any of the following Investments: (i) securities issued or directly and fully guaranteed or insured by the United States or any agency or instrumentality thereof ( provided that the full faith and credit of the United States is pledged in support thereof) maturing not more than one year after the date of acquisition; (ii) time deposits in and certificates of deposit of any Eligible Bank, provided that such Investments have a maturity date not more than two years after date of acquisition and that the Average Life of all such Investments is one year or less from the respective dates of acquisition; (iii) repurchase obligations with a term of not more than 180 days for underlying securities of the types described in clause (i) above entered into with any Eligible Bank; (iv) direct obligations issued by any state of the United States or any political subdivision or public instrumentality thereof, provided that such Investments mature, or are subject to tender at the option of the holder thereof, within 365 days after the date of acquisition and, at the time of acquisition, have a rating of at least A from S&P or A-2 from Moody’s (or an equivalent rating by any other nationally recognized rating agency); (v) commercial paper of any Person other than an affiliate of the Parent and other than structured investment vehicles, provided that such Investments have one of the two highest ratings obtainable from either S&P or Moody’s and mature within 180 days after the date of acquisition; (vi) overnight and demand deposits in and bankers’ acceptances of any Eligible Bank and demand deposits in any bank or trust company to the extent insured by the Federal Deposit Insurance Corporation against the Bank Insurance Fund; (vii) money market funds 95% of the assets of which comprise Investments of the types described in clauses (i) through (vi); and (viii) instruments equivalent to those referred to in clauses (i) through (vi) above or funds equivalent to those referred to in clause (vii) above denominated in U.S. dollars, Euros or any other foreign currency comparable in credit quality and tender to those referred to in such clauses and customarily used by corporations for cash management purposes in jurisdictions outside the United States to the extent reasonably required in connection with any business conducted by any Restricted Subsidiary organized in such jurisdiction, all as determined in good faith by the Parent.
 

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“ Excluded Contributions ” means the net cash proceeds received by the Parent after the Issue Date from:

(1) contributions to its common equity capital, and

(2) the sale (other than to a Restricted Subsidiary of the Parent or to any Parent management equity plan or stock option plan or any other management or employee benefit plan or agreement) of Capital Stock (other than Redeemable Capital Interests and preferred stock) of the Parent;

provided, however that such net cash proceeds will be designated by the Parent as “Excluded Contributions” in an Officers’ Certificate delivered to the Trustee and the net cash proceeds so designated will be excluded from the calculation set forth in Section 4.05(a)(iii).

“ Existing Notes ” means the Parent’s (i) 5.50% Senior Notes due 2022 and 6.75% Senior Notes due 2016, (ii) SunBelt Notes due 2012-2017, issued on December 22, 1997 and (iii) Variable-rate 2024 Bonds issued on October 14, 2010, Recovery Zone Bonds issued on December 9, 2010 and Recovery Zone Bonds due 2035 issued on December 27, 2010.

“ Guarantee ” means, with respect to the Notes, the Guarantee of the Parent or a Subsidiary Guarantor pursuant to the terms of this Indenture.

“ Investment ” by any Person means any direct or indirect loan, advance, guarantee for the benefit of (or other extension of credit) or capital contribution to (by means of any transfer of cash or other property or assets to another Person or any other payments for property or services for the account or use of another Person) another Person, including, without limitation, the following: (i) the purchase or acquisition of any Capital Stock or other evidence of beneficial ownership in another Person; (ii) the purchase, acquisition or guarantee of the Debt of another Person; and (iii) the purchase or acquisition of the business or assets of another Person substantially as an entirety but shall exclude: (a) accounts receivable and other extensions of trade credit in accordance with the Parent’s customary practices; (b) the acquisition of property and assets from suppliers and other vendors in the normal course of business; and (c) prepaid expenses and workers’ compensation, utility, lease and similar deposits, in the normal course of business.

For purposes of Section 4.05 and the definition of “Unrestricted Subsidiary”:
 

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(1)              “Investment” will include the portion (proportionate to the Parent’s equity interest in the Restricted Subsidiary to be designated as an Unrestricted Subsidiary) of the fair market value as determined by the Parent in good faith of the net assets of such Restricted Subsidiary of the Parent at the time that such Restricted Subsidiary is designated an Unrestricted Subsidiary; provided , however , that upon a redesignation of such Subsidiary as a Restricted Subsidiary, the Parent will be deemed to continue to have a permanent “Investment” in an Unrestricted Subsidiary in an amount (if positive) equal to (a) the Parent’s “Investment” in such Subsidiary at the time of such redesignation less (b) the portion (proportionate to the Parent’s equity interest in such Subsidiary) of the fair market value as determined by the Parent in good faith of the net assets of such Subsidiary at the time that such Subsidiary is so re-designated as a Restricted Subsidiary; and

(2)              any property transferred to or from an Unrestricted Subsidiary will be valued at its fair market value at the time of such transfer, as determined by the Parent in good faith.

“ Moody’s ” means Moody’s Investors Services, Inc. and any successor to its rating agency business.

“ Net Cash Proceeds ” means, with respect to Asset Sales of any Person, cash and Eligible Cash Equivalents received, net of: (i) all reasonable out-of-pocket costs and expenses of such Person incurred in connection with such a sale, including, without limitation, all legal, accounting, title and recording tax expenses, commissions and other fees and expenses incurred and all federal, state, foreign and local taxes arising in connection with such an Asset Sale that are paid or required to be accrued as a liability under GAAP by such Person; (ii) all payments made by such Person on any Debt that is secured by such properties or other assets in accordance with the terms of any Lien upon or with respect to such properties or other assets or that must, by the terms of such Lien or such Debt, or in order to obtain a necessary consent to such transaction or by applicable law, be repaid to any other Person (other than the Parent or a Restricted Subsidiary thereof) in connection with such Asset Sale; and (iii) all contractually required distributions and other payments made to minority interest holders in Restricted Subsidiaries of such Person as a result of such transaction; provided, however , that: (a) in the event that any consideration for an Asset Sale (which would otherwise constitute Net Cash Proceeds) is required by (I) contract to be held in escrow pending determination of whether a purchase price adjustment will be made or (II) GAAP to be reserved against other liabilities in connection with such Asset Sale, such consideration (or any portion thereof) shall become Net Cash Proceeds only at such time as it is released to such Person from escrow or otherwise; and (b) any non-cash consideration received in connection with any transaction, which is subsequently converted to cash, shall become Net Cash Proceeds only at such time as it is so converted.

“ Non-Guarantor Subsidiary ” means any Restricted Subsidiary that is not a Subsidiary Guarantor or the Issuer.

“ 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 the Parent or the Issuer.

“ Permitted Asset Swap ” means the concurrent purchase and sale or exchange of properties or assets (other than securities) that are used or useful in a Permitted Business or a combination of such assets and cash or Eligible Cash Equivalents between the Parent or any of its Restricted Subsidiaries and another Person; provided, however that any cash and Eligible Cash Equivalents must be applied in accordance with Section 4.11.
 
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“ Permitted Business ” means any business similar in nature to any business conducted by the Parent and the Restricted Subsidiaries on the Issue Date and any business reasonably ancillary, incidental, complementary or related to, or a reasonable extension, development or expansion of, the business conducted by the Parent and the Restricted Subsidiaries on the Issue Date, in each case, as determined in good faith by the Parent.

“ Permitted Debt ” means

(1) Debt incurred by the Issuer, the Parent or any Subsidiary Guarantor pursuant to any Debt Facilities in an aggregate principal amount at any one time outstanding not to exceed (x) $2,880.0 million minus (y) any amount used to permanently repay such obligations (or permanently reduce commitments with respect thereto) pursuant to Section 4.11;

(2) Debt under (a) the Notes issued on the Issue Date and any Exchange Notes issued in exchange for such Notes and (b) the 2023 Notes issued on the Issue Date and any exchange notes issued in exchange for such notes;

(3) Guarantees of the Notes and any Exchange Notes issued in exchange for such Notes and guarantees of the 2023 Notes and any exchange notes issued in exchange for such notes;

(4) Debt of the Parent or any Restricted Subsidiary outstanding on the Issue Date (other than Debt incurred pursuant to clauses (1), (2) or (3) above) (including the Existing Notes);

(5) guarantees incurred by the Parent of Debt of a Restricted Subsidiary otherwise permitted to be incurred under this Indenture;

(6) guarantees by any Restricted Subsidiary of Debt of the Parent or any other Restricted Subsidiary, including guarantees by any Restricted Subsidiary of Debt under the Credit Agreement and the Sumitomo Credit Agreement; provided, however, that (a) such Debt is permitted to be incurred under this Indenture and (b) if the Debt being guaranteed is subordinated in right of payment to the Notes, such guarantees are subordinated to the Notes to the same extent, if any, as the Debt being guaranteed;

(7) Debt incurred in respect of workers’ compensation claims and self-insurance obligations, and, for the avoidance of doubt, indemnity, bid, performance, warranty, release, appeal, surety and similar bonds, letters of credit for operating purposes and completion guarantees provided or incurred (including guarantees thereof) by the Parent or a Restricted Subsidiary in the ordinary course of business;

(8) Debt under Swap Contracts and Hedging Obligations incurred in the ordinary course of business and not for speculative purposes;

(9) Debt owed by the Parent to any Restricted Subsidiary, or by any Restricted Subsidiary to the Parent or to any other Restricted Subsidiary, provided that if for any reason such Debt ceases to be held by the Parent or a Restricted Subsidiary, as applicable, such Debt shall cease to be Permitted Debt under this clause (9) and shall be deemed incurred as Debt of the Parent for purposes of this Indenture;

(10) Debt of the Parent or a Subsidiary Guarantor pursuant to capital lease obligations, synthetic lease obligations and Purchase Money Debt and any Refinancing Debt that Refinances any Debt incurred pursuant to this clause (10); provided , however that the aggregate principal amount of all Debt incurred under this clause (10) and outstanding at any time may not exceed $100.0 million in the aggregate;
 
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(11) Debt arising from agreements of the Parent or a Restricted Subsidiary providing for indemnification, contribution, earnout, adjustment of purchase price or similar obligations, in each case, incurred or assumed in connection with the acquisition or disposition of any business, assets or Capital Stock of a Restricted Subsidiary otherwise permitted under this Indenture;

(12) the issuance by any of the Parent’s Restricted Subsidiaries to the Parent or to any of its Restricted Subsidiaries of shares of Redeemable Capital Interests or preferred stock; provided , however , that:

(a) any subsequent issuance or transfer of Capital Stock that results in any such Redeemable Capital Interests being held by a Person other than the Parent or a Restricted Subsidiary; and

(b) any sale or other transfer of any such Redeemable Capital Interests to a Person that is not either the Parent or a Restricted Subsidiary;

shall be deemed, in each case, to constitute an issuance of such Redeemable Capital Interests by such Restricted Subsidiary that was not permitted by this clause (12);

(13) Debt 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 Debt is extinguished within five business days of incurrence;

(14) Debt of the Parent or a Restricted Subsidiary not otherwise permitted pursuant to this definition, in an aggregate principal amount not to exceed $150.0 million at any time outstanding;

(15) Purchase Money Notes incurred by any Receivable Subsidiary that is a Restricted Subsidiary in a Qualified Receivables Transaction and Non-Recourse Receivable Subsidiary Indebtedness;  p rovided , however that the aggregate amounts incurred and outstanding under all Qualified Receivables Transactions shall not exceed $250.0 million;

(16) Debt of Foreign Restricted Subsidiaries in an aggregate principal amount not to exceed $50.0 million at any one time outstanding;

(17) (x) Debt of the Parent, the Issuer or any Subsidiary Guarantor incurred or issued to finance an acquisition or (y) Acquired Debt; provided , however , that after giving pro forma effect to such acquisition, merger or consolidation, and the incurrence of such Debt (including pro forma application of the proceeds thereof), either:

(a) the Parent would be permitted to incur at least $1.00 of additional Coverage Debt pursuant to Section 4.06(a);

(b) the Consolidated Fixed Charge Coverage Ratio of the Parent and its Restricted Subsidiaries would not be lower than such ratio immediately prior to such acquisition, merger or consolidation; or

(c) such Debt constitutes Acquired Debt (other than Debt incurred in contemplation of the transaction or series of transactions pursuant to which such Person became a Restricted Subsidiary or was otherwise acquired by the Parent or a Restricted Subsidiary); provided that the only obligors with respect to such Debt shall be those Persons who were obligors of such Debt prior to such acquisition, merger or consolidation; and
 
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(18) Refinancing Debt that Refinances Coverage Debt or Debt incurred pursuant to clauses (2), (4), (17) or this clause (18) of this definition of “Permitted Debt.”

“ Permitted Investments ” means:

(1)              Investments in existence on the Issue Date;

(2)              Investments required pursuant to any agreement or obligation of the Parent or a Restricted Subsidiary, in effect on the Issue Date, to make such Investments;

(3)              Investments in cash and Eligible Cash Equivalents;

(4)              Investments in property and other assets, owned or used by the Parent or any Restricted Subsidiary in the normal course of business;

(5)              Investments by the Parent or any of its Restricted Subsidiaries in the Parent or any Restricted Subsidiary;

(6)              Investments by the Parent or any Restricted Subsidiary in a Person, if as a result of such Investment (A) such Person becomes a Restricted Subsidiary or (B) such Person is merged, consolidated or amalgamated with or into, or transfers or conveys substantially all of its assets to, or is liquidated or wound-up into, the Parent or a Restricted Subsidiary;

(7)              Swap Contracts and Hedging Obligations;

(8)              receivables owing to the Parent or any of its Restricted Subsidiaries and advances to suppliers, in each case if created, acquired or made in the ordinary course of business and payable or dischargeable in accordance with customary trade terms;

(9)              Investments received in settlement of obligations owed to the Parent or any Restricted Subsidiary and as a result of bankruptcy or insolvency proceedings or upon the foreclosure or enforcement of any Lien in favor of the Parent or any Restricted Subsidiary;

(10)              Investments by the Parent or any Restricted Subsidiary not otherwise permitted under this definition, in an aggregate amount not to exceed the greater of (i) $250.0 million and (ii) 5% of Consolidated Net Tangible Assets at any one time outstanding;

(11)              loans and advances to officers, directors and employees of the Parent and Restricted Subsidiaries in an aggregate amount not to exceed $10.0 million in the aggregate at any one time outstanding, for travel, entertainment, relocation and analogous ordinary business purposes;

(12)              Investments the payment for which consists solely of Capital Stock of the Parent;
 
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(13)              any Investment in any Person to the extent such Investment represents the non-cash portion of the consideration received in connection with an Asset Sale consummated in compliance with Section 4.11 or any other disposition of property not constituting an Asset Sale;

(14)              payroll, travel 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 and consistent with past practice;

(15)              guarantees by the Parent or any Restricted Subsidiary of Debt of the Parent or a Restricted Subsidiary (other than a Receivables Subsidiary) of Debt otherwise permitted by Section 4.06;

(16)              any Investment by the Parent or any Restricted Subsidiary in a Receivable Subsidiary or any Investment by a Receivable Subsidiary in any other Person in connection with a Qualified Receivables Transaction, so long as any Investment in a Receivable Subsidiary is in the form of a Purchase Money Note or an Investment in Capital Stock; and

(17)              other Investments in any Person that is a joint venture engaged in a Permitted Business (other than an Investment in an Unrestricted Subsidiary) having an aggregate fair market value as determined by the Parent in good faith (measured on the date each such Investment was made and without giving effect to subsequent changes in value), when taken together with all other Investments made pursuant to this clause (q) since the Issue Date and existing at the time of the Investment, which is the subject of the determination, was made, not to exceed the greater of (i) $125 million and (ii) 2.5% of Consolidated Net Tangible Assets.

“ Principal Property ” means any of the Parent’s properties or plants or the properties or plants of any Restricted Subsidiary primarily used for the manufacture of products and located within the United States or its territories or possessions, except any such property or plant which the Board of Directors of the Parent by resolution declares is not of material importance to the total business conducted by the Parent and its Subsidiaries as an entirety.

“ Purchase Money Note ” means a promissory note of a Receivable Subsidiary issued to the Parent or any Restricted Subsidiary, to pay all or a portion of the purchase price of receivables and assets related thereto described in the definition of “Qualified Receivables Transaction” that are purchased in connection with a Qualified Receivables Transaction. The repayment of a Purchase Money Note may be subordinated to the repayment of other liabilities of the Receivable Subsidiary on terms determined in good faith by the Parent to be substantially consistent with market practice in connection with Qualified Receivables Transactions.

“ Qualified Receivables Transaction ” means any transaction or series of transactions entered into by the Parent or any of its Restricted Subsidiaries pursuant to which the Parent or such Restricted Subsidiary transfers to (1) a Receivable Subsidiary (in the case of a transfer by the Parent or any of its Restricted Subsidiaries) or (2) any other Person (in the case of a transfer by a Receivable Subsidiary), or grants a security interest in, any accounts receivable (whether now existing or arising in the future) of the Parent or any of its Restricted Subsidiaries, and any assets related thereto, including, without limitation, all collateral securing such accounts receivable, all contracts and all guarantees or other obligations in respect of such accounts receivable, proceeds of such accounts receivable and other assets which are customarily transferred or in respect of which security interests are customarily granted in connection with an accounts receivable financing transaction; provided such transaction is on market terms as determined in good faith by the Parent at the time the Parent or such Restricted Subsidiary enters into such transaction.
 

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“ Receivable Subsidiary ” means a Subsidiary of the Parent (other than the Issuer):

(1)              that is formed solely for the purpose of, and that engages in no activities other than activities in connection with, financing accounts receivable of the Parent and/or its Restricted Subsidiaries, including providing letters of credit on behalf of or for the benefit of the Parent and/or its Restricted Subsidiaries;

(2)              that is designated by the Board of Directors of the Parent as a Receivable Subsidiary pursuant to an Officers’ Certificate that is delivered to the Trustee;

(3)              that is either (a) a Restricted Subsidiary or (b) an Unrestricted Subsidiary designated in accordance with the definition of “Unrestricted Subsidiary”;

(4)              no portion of the Debt or any other obligation (contingent or otherwise) of which (a) is at any time guaranteed by the Parent or any Restricted Subsidiary (excluding guarantees of obligations (other than any guarantee of Debt) pursuant to Standard Securitization Undertakings), (b) is at any time recourse to or obligates the Parent or any Restricted Subsidiary in any way, other than pursuant to Standard Securitization Undertakings or (c) subjects any asset of the Parent or any other Restricted Subsidiary of the Parent, directly or indirectly, contingently or otherwise, to the satisfaction thereof, other than pursuant to Standard Securitization Undertakings (such Debt, “Non-Recourse Receivable Subsidiary Indebtedness”);

(5)              with which neither the Parent nor any Restricted Subsidiary has any material contract, agreement, arrangement or understanding other than (a) contracts, agreements, arrangements and understandings entered into in connection with a Qualified Receivables Transaction, (b) fees payable in the ordinary course of business in connection with servicing accounts receivable in connection with such a Qualified Receivables Transaction as determined in good faith by the Board of Directors of the Parent and (c) any Purchase Money Note issued by such Receivable Subsidiary to the Parent or a Restricted Subsidiary or any letters of credit provided by such Receivable Subsidiary on behalf of or for the benefit of the Parent or any Restricted Subsidiary; and

(6)              with respect to which neither the Parent nor any other Restricted Subsidiary has any obligation (a) to subscribe for additional shares of Capital Stock therein or make any additional capital contribution or similar payment or transfer thereto except in connection with a Qualified Receivables Transaction or (b) to maintain or preserve the solvency or any balance sheet term, financial condition, level of income or results of operations thereof.

“ Redeemable Capital Interests ” in any Person means any equity security of such Person that by its terms (or by terms of any security into which it is convertible or for which it is exchangeable), or otherwise (including the passage of time or the happening of an event), is required to be redeemed, is redeemable at the option of the holder thereof in whole or in part (including by operation of a sinking fund), or is convertible or exchangeable for Debt of such Person at the option of the holder thereof, in whole or in part, at any time prior to the Stated Maturity of the Notes; provided that only the portion of such equity security which is required to be redeemed, is so convertible or exchangeable or is so redeemable at the option of the holder thereof before such date will be deemed to be Redeemable Capital Interests. Notwithstanding the preceding sentence, any equity security that would constitute Redeemable Capital Interests solely because the holders of the equity security have the right to require the Parent to repurchase such equity security upon the occurrence of a Change of Control or an Asset Sale will not constitute Redeemable Capital Interests if the terms of such equity security provide that the Parent may not repurchase or redeem any such equity security pursuant to such provisions unless such repurchase or redemption complies with Section 4.05. The amount of Redeemable Capital Interests deemed to be outstanding at any time for purposes of this Indenture will be the maximum amount that the Parent and its Restricted Subsidiaries may become obligated to pay upon the maturity of, or pursuant to any mandatory redemption provisions of, such Redeemable Capital Interests or portion thereof, exclusive of accrued dividends.
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“ Refinancing Debt ” means Debt that Refinances any Debt incurred by the Parent or any Restricted Subsidiary pursuant to the terms of this Indenture, whether involving the same or any other lender or creditor or group of lenders or creditors, but only to the extent that

(1)              if the Debt being refinanced is subordinated in right of payment to the Notes, the Refinancing Debt is subordinated to the Notes to at least the same extent as the Debt being Refinanced if such Debt was subordinated to the Notes,

(2)              the Refinancing Debt is scheduled to mature either (a) no earlier than the Debt being Refinanced or (b) at least 91 days after the maturity date of the Notes,

(3)              the Refinancing Debt has an Average Life at the time such Refinancing Debt is incurred that is equal to or greater than the Average Life of the Debt being Refinanced,

(4)        such Refinancing Debt is in 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 fees and expenses, including any premium and defeasance costs) with respect to the Debt being Refinanced, and

(5)              Refinancing Debt shall not include Debt of a Non-Guarantor Subsidiary that refinances Debt of the Parent, the Issuer or a Subsidiary Guarantor.

“ Restricted Payment ” is defined to mean any of the following:

(1) any dividend or other distribution declared and paid on the Capital Stock in the Parent or on the Capital Stock in any Restricted Subsidiary of the Parent that are held by, or declared and paid to, any Person other than the Parent or a Restricted Subsidiary of the Parent (other than (i) dividends, distributions or payments made solely in Qualified Capital Interests in the Parent and (ii) dividends or distributions payable to the Parent or a Restricted Subsidiary of the Parent or to other holders of Capital Stock of a Restricted Subsidiary on a pro rata basis);

(2) any payment (including, without limitation, in connection with a merger, consolidation or amalgamation) made by the Parent or any of its Restricted Subsidiaries to purchase, redeem, acquire or retire any Capital Stock in the Parent (including the conversion into, or exchange for, Debt, of any Capital Stock) other than any such Capital Stock owned by the Parent or any Restricted Subsidiary (other than a payment made solely in Qualified Capital Interests in the Parent);

(3) any payment made by the Parent or any of its Restricted Subsidiaries (other than a payment made solely in Qualified Capital Interests in the Parent) to redeem, repurchase, defease (including an in substance or legal defeasance) or otherwise acquire or retire for value (including pursuant to mandatory repurchase covenants), prior to any scheduled maturity, scheduled sinking fund or mandatory redemption payment, Debt of the Parent or any Subsidiary Guarantor that is subordinate in right of payment to the Notes or Guarantees (excluding any Debt owed to the Parent or any Restricted Subsidiary); except payments of principal and interest in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, within one year of the due date thereof;
 
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(4) any Investment by the Parent or a Restricted Subsidiary in any Person, other than a Permitted Investment; and

(5) any designation of a Restricted Subsidiary as an Unrestricted Subsidiary.

“ Restricted Subsidiary ” means any Subsidiary of the Parent (including the Issuer) other than an Unrestricted Subsidiary.

“ Significant Subsidiary ” means any Restricted Subsidiary of the Parent that constitutes a “significant subsidiary” within the meaning set forth in Rule 1-02 of Regulation S-X promulgated by the Commission.

“ Standard Securitization Undertakings ” means representations, warranties, covenants and indemnities entered into by the Parent or any Restricted Subsidiary which are reasonably customary in an accounts receivable securitization transaction as determined in good faith by the Parent, including guarantees by the Parent or any Restricted Subsidiary of any of the foregoing obligations of the Parent or a Restricted Subsidiary.

“ Subsidiary ” of any Person means any corporation, association or other business entity of which more than 50%, by number of votes, of the Voting Stock is at the time directly or indirectly owned by such Person.  Unless otherwise specified herein, each reference to a Subsidiary will refer to a Subsidiary of the Parent, including the Issuer.

“ Subsidiary Guarantor ” means each Restricted Subsidiary of the Parent that executes a supplemental indenture, including in the form set forth in Exhibit C hereto providing its Guarantee pursuant to the terms of this Indenture after the Issue Date.

“ Sumitomo Credit Agreement ” means the credit agreement, dated as of August 25, 2015 (as amended, supplemented or otherwise modified from time to time), among the Issuer, the Parent and the agents and lenders named therein, providing for a term loan facility, which shall provide for borrowings by the Parent, together with all related notes, letters of credit, guarantees, and any other related agreements and instruments executed and delivered in connection therewith, in each case as amended, modified, supplemented, restated, refinanced, refunded or replaced in whole or in part from time to time including by or pursuant to any agreement or instrument that exchanges, extends, refinances, renews, replaces, substitutes or otherwise restructures the maturity of any indebtedness thereunder, or increases the amount of available borrowings thereunder, or adds Subsidiaries of the Parent as additional borrowers or guarantors thereunder, in each case with respect to such agreement or any successor or replacement agreement and whether by the same or any other agent, lender, group of lenders, purchasers, institutional investors or debt holders.

“ Unrestricted Subsidiary ” means:

(1)              any direct or indirect Subsidiary of the Parent (other than the Issuer) which at the time of determination is an Unrestricted Subsidiary (as designated by the Board of Directors of the Parent, as provided below) and
 
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(2)              any Subsidiary of an Unrestricted Subsidiary.

The Board of Directors of the Parent may designate any direct or indirect Subsidiary of the Parent (including any existing Subsidiary and any newly-acquired or newly-formed direct or indirect Subsidiary) (other than the Issuer) to be an Unrestricted Subsidiary unless such Subsidiary or any of its Subsidiaries owns any Capital Stock or Debt of, or owns or holds any Lien on, any property of, the Parent or any  Subsidiary of the Parent (other than any Subsidiary of the Subsidiary to be so designated); provided that

(a)              any Unrestricted Subsidiary must be an entity of which the Capital Stock entitled to cast at least a majority of the votes that may be cast by all Capital Stock having ordinary voting power for the election of directors or other governing body are owned, directly or indirectly, by the Parent,

(b)              such designation complies with Section 4.05 and

(c)              each of

(1)              the Subsidiary to be so designated and

(2)              its Subsidiaries

has not at the time of designation, and does not thereafter, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable with respect to any Debt pursuant to which the lender has recourse to any of the assets of the Parent or any Restricted Subsidiary.

The Board of Directors of the Parent may designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that immediately after giving effect to such designation no Default or Event of Default shall have occurred and be continuing and either:

(1)              the Parent could incur at least $1.00 of additional Debt pursuant to the Consolidated Fixed Charge Coverage Ratio test described under Section 4.06 or

(2)              the Consolidated Fixed Charge Coverage Ratio for the Parent and the Restricted Subsidiaries on a consolidated basis would be greater than or equal to such ratio for the Parent and the Restricted Subsidiaries on a consolidated basis immediately prior to such designation, in each case on a pro forma basis taking into account such designation.

Any such designation by the Board of Directors of the Parent shall be notified by the Issuer to the Trustee by promptly filing with the Trustee a copy of a resolution of the board of directors of the Issuer giving effect to such designation and an Officers’ Certificate certifying that such designation complied with the foregoing provisions.

1.02.              Section 1.02 “Other Definitions” is hereby amended by adding to the table in its appropriate alphabetical order the term “Successor Guarantor,” which is defined in Section 5.01(c).

1.03.              Section 1.04 “Incorporation by Reference of Trust Indenture Act,” Section 1.05 “Acts of Holders,” Section 2.01 “Form and Dating; Terms,” Section 4.02 “Maintenance of Office or Agency,” Section 7.07 “Compensation and Indemnity,” Section 9.06 “Trustee to Sign Amendments, etc.,” Section 10.02 “Application of Trust Money” and Section 2.3 “Definitive Notes” of Appendix A and Section 9 “Defaults and Remedies” of the Notes are hereby amended by inserting “, the Parent” before each reference to “and the Subsidiary Guarantors”, “or the Subsidiary Guarantors”, “or any Subsidiary Guarantor”, “the Subsidiary Guarantors”, “each Subsidiary Guarantor” and “and any Subsidiary Guarantor” therein.
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1.04.              The following sections in Article 4 “Covenants” are hereby amended and restated in their entirety as follows:

ARTICLE 4

COVENANTS

Section 4.03                 Provision of Financial Information .

Whether or not required by the Commission, so long as any Notes are outstanding, the Parent will furnish to the Holders, or file electronically with the Commission through the Commission’s Electronic Data Gathering, Analysis and Retrieval System (or any successor system), within the time periods specified in the Commission’s rules and regulations:

(1) all quarterly and annual financial information that would be required to be contained in a filing by the Parent with the Commission on Forms 10-Q and 10-K if the Parent were required to file such Forms, including a “Management’s discussion and analysis of financial condition and results of operations” and, with respect to the annual information only, a report on the annual financial statements by the Parent’s certified independent accountants; and

(2) all current reports that would be required to be filed by the Parent with the Commission on Form 8-K if the Parent were required to file such reports.

In addition, whether or not required by the Commission, the Parent will file a copy of all of the information and reports referred to in clauses (1) and (2) above with the Commission for public availability within the time periods specified in the Commission’s rules and regulations (unless the Commission will not accept such a filing) and make such information available to prospective investors. In addition, the Parent has agreed that, for so long as any Notes remain outstanding, it will furnish to the Holders of such Notes and to prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.

Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates). The Trustee shall have no responsibility or liability for the filing, content or timeliness of any such report, information or document other than the report of the Trustee specifically required hereunder.

Section 4.04                            Compliance Certificate .

(a)              The Issuer will deliver to the Trustee, within 120 days after the end of each fiscal year ending after the Issue Date, a certificate from the principal executive officer, principal financial officer or principal accounting officer stating that a review of the activities of the Parent and its Restricted Subsidiaries during the preceding fiscal year has been made under the supervision of the signing Officer with a view to determining whether the Issuer, the Parent and each Subsidiary Guarantor have kept, observed, performed and fulfilled their obligations under this Indenture, and further stating, as to such Officer signing such certificate, that to the best of his or her knowledge, the Issuer, the Parent and each Subsidiary Guarantor have kept, observed, performed and fulfilled each and every condition and covenant contained in this Indenture and is not in default in the performance or observance of any of the terms, provisions, covenants and conditions of this Indenture (or, if a Default shall have occurred, describing all such Defaults of which he or she may have knowledge and what action the Issuer, the Parent and each Subsidiary Guarantor are taking or propose to take with respect thereto).
 
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(b)              When any Default has occurred and is continuing under this Indenture, the Issuer will promptly send to the Trustee an Officers’ Certificate specifying such event, its status and what action the Issuer is taking or proposes to take with respect thereof.

Section 4.05                            Limitation on Restricted Payments .

(a)            The Parent will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, make any Restricted Payment unless, at the time of and after giving effect to the proposed Restricted Payment:

(i)              no Default shall have occurred and be continuing or will occur as a consequence thereof;

(ii)              after giving effect to such Restricted Payment on a pro forma basis, the Parent would be permitted to incur at least $1.00 of Coverage Debt under Section 4.06(a); and

(iii)              after giving effect to such Restricted Payment on a pro forma basis, the aggregate amount of all Restricted Payments made after the Issue Date (excluding (x) Restricted Payments permitted by clauses (2) through (8) of Section 4.05(b) and (y) Restricted Payments permitted by clause (9) of Section 4.05(b) to the extent that the amount available for Restricted Payments under this clause (iii) would be reduced to less than zero as a result of payments made under such clause (9)), shall not exceed the sum (without duplication) of

(A)              50% of the Consolidated Net Income (or, if Consolidated Net Income shall be a deficit, minus 100% of such deficit) of the Parent accrued on a cumulative basis during the period (taken as one accounting period) from the beginning of the fiscal quarter during which the Issue Date occurs and ending on the last day of the fiscal quarter immediately preceding the date of such proposed Restricted Payment, plus

(B)              100% of the aggregate net proceeds (including the fair market value of property other than cash as determined by the Parent in good faith) received by the Parent subsequent to the initial issuance of the Notes either (i) as a contribution to its common equity capital or (ii) from the issuance and sale (other than to a Subsidiary) of its Qualified Capital Interests, including Qualified Capital Interests issued upon the conversion of Debt, Redeemable Capital Interests or preferred stock of the Parent, and from the exercise of options, warrants or other rights to purchase such Qualified Capital Interests (other than, in each case, Capital Stock or Debt sold to a Subsidiary of the Parent and other than Excluded Contributions), plus

(C)              to the extent that any Investment (other than Permitted Investments or Investments in Unrestricted Subsidiaries) that was made on or after the Issue Date is sold for cash or otherwise disposed of, liquidated, redeemed, repurchased or repaid for cash or other assets, or to the extent that the Parent otherwise realizes any proceeds on the sale of such Investment or proceeds representing the return of capital on such Investment, the lesser of (i) the initial amount of such Investment, or (ii) to the extent not otherwise included in the calculation of Consolidated Net Income of the Parent for such period, the net cash return of capital or net fair market value of return of capital as determined by the Parent in good faith with respect to such Investment, less the cost of any such disposition or liquidation, plus
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(D)              to the extent that any Unrestricted Subsidiary of the Parent designated as such on or after the Issue Date is redesignated as a Restricted Subsidiary, the lesser of (i) the fair market value of the Parent’s Investment in such Subsidiary as of the date of such redesignation as determined by the Parent in good faith or (ii) such fair market value as of the date on which such Subsidiary was originally designated as an Unrestricted Subsidiary, plus

(E)              $150.0 million.

(b)              The provisions of Section 4.05(a) will not prohibit:

(1)              the payment of any dividend on Capital Stock in the Parent or a Restricted Subsidiary within 60 days after declaration thereof if at the declaration date such payment was permitted by the provisions of Section 4.05;

(2)              the purchase, repurchase, redemption, defeasance or other acquisition or retirement of any Qualified Capital Interests of the Parent by conversion into, or by or in exchange for, Qualified Capital Interests, or out of net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Parent) of other Qualified Capital Interests of the Parent;

(3)              the redemption, defeasance, repurchase or acquisition or retirement for value of any Debt of the Parent or a Subsidiary Guarantor that is subordinate in right of payment to the Notes or the applicable Guarantee out of the net cash proceeds of a substantially concurrent issue and sale (other than to a Subsidiary of the Parent) of (x) new subordinated Debt of the Parent or such Subsidiary Guarantor, as the case may be, incurred in accordance with this Indenture or (y) of Qualified Capital Interests of the Parent;

(4)              the purchase, redemption, retirement or other acquisition for value of Capital Stock of the Parent held by employees or former employees of the Parent or any Restricted Subsidiary (or their estates or beneficiaries under their estates) upon death, disability, retirement or termination of employment or alteration of employment status or pursuant to the terms of any agreement under which such Capital Stock was issued; provided, however , that the aggregate cash consideration paid for such purchase, redemption, retirement or other acquisition of such Capital Stock does not exceed $5.0 million in any calendar year; provided further, however , that any unused amounts in any calendar year may be carried forward to one or more future periods subject to a maximum aggregate amount of repurchases made pursuant to this clause (iv) not to exceed $10.0 million in any calendar year; provided, however , that such amount in any calendar year may be increased by an amount not to exceed (A) the cash proceeds received by the Parent or any of its Restricted Subsidiaries from the sale of Qualified Capital Interests of the Parent to employees of the Parent and its Restricted Subsidiaries that occurs after the Issue Date; provided, however , that the amount of such cash proceeds utilized for any such repurchase, retirement, other acquisition or dividend will not increase the amount available for Restricted Payments under clause (iii) of Section 4.05(a); plus (B) the cash proceeds of key man life insurance policies received by the Parent and its Restricted Subsidiaries after the Issue Date ( provided, however , that the Parent may elect to apply all or any portion of the aggregate increase contemplated by the proviso of this clause (4) in any calendar year);
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(5)              repurchase of Capital Stock deemed to occur upon the exercise of stock options, warrants or other convertible or exchangeable securities;

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

(7)              the declaration and payment of dividends to holders of any class or series of Redeemable Capital Interests of the Parent or any Restricted Subsidiary issued or incurred in compliance with Section 4.06;

(8)              upon the occurrence of a Change of Control or an Asset Sale, the defeasance, redemption, repurchase or other acquisition of any subordinated Debt pursuant to provisions substantially similar to those described under Section 4.10 and Section 4.11 at a purchase price not greater than 101% of the principal amount thereof (in the case of a Change of Control) or at a percentage of the principal amount thereof not higher than the principal amount applicable to the Notes (in the case of an Asset Sale), plus any accrued and unpaid interest thereon; provided, however , that prior to or contemporaneously with such defeasance, redemption, repurchase or other acquisition, the Issuer has made an Offer to Purchase with respect to the applicable Notes and has repurchased all Notes validly tendered for payment and not withdrawn in connection therewith;

(9)              to the extent no Default in any payment in respect of principal or interest under the Notes or Event of Default has occurred and is continuing or will occur as a consequence thereof, the payment of regular cash quarterly dividends on the Parent’s common stock; provided, however , that in no event shall the amount of dividends paid in any calendar year under this clause (9) exceed $200.0 million;

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

(11)              to the extent no Default in any payment in respect of principal or interest under the Notes or an Event of Default has occurred and is continuing or will occur as a consequence thereof, other Restricted Payments not in excess of $50.0 million in the aggregate;

(12)              to the extent no Default in any payment in respect of principal or interest under the Notes or an Event of Default has occurred and is continuing or will occur as a consequence thereof, any Restricted Payment so long as on the date of such Restricted Payment, after giving pro forma effect thereto and to any related transactions as if the same had occurred at the beginning of the Parent’s most recent four consecutive fiscal quarters for which internal financial statements of the Parent are available, the Consolidated Debt Ratio would not exceed 2.50 to 1.00; and

(13)              any Restricted Payment made in connection with the Transactions.

(c)              If any Person in which an Investment is made, which Investment constitutes a Restricted Payment when made, thereafter becomes a Restricted Subsidiary in accordance with this Indenture, all such Investments previously made in such Person shall no longer be counted as Restricted Payments for purposes of calculating the aggregate amount of Restricted Payments pursuant to clause (iii) of Section 4.05(a), in each case to the extent such Investments would otherwise be so counted.

(d)              For purposes of this Section 4.05, if a particular Restricted Payment involves a non-cash payment, including a distribution of assets, then such Restricted Payment shall be deemed to be an amount equal to the cash portion of such Restricted Payment, if any, plus an amount equal to the fair market value of the non-cash portion of such Restricted Payment as determined by the Parent in good faith.
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Section 4.06                  Limitation on Debt .

(a)              The Parent will not, and will not permit any of its Restricted Subsidiaries to incur any Debt (including Acquired Debt); provided , however , that the Parent, the Issuer and any Restricted Subsidiary may incur Debt (including Acquired Debt) if, immediately after giving effect to the incurrence of such Debt and the receipt and application of the proceeds therefrom:

(1)              the Consolidated Fixed Charge Coverage Ratio of the Parent and its Restricted Subsidiaries would be greater than 2.00 to 1.00; and

(2)              no Default shall have occurred and be continuing at the time or as a consequence of the incurrence of such Debt (any Debt incurred pursuant to this provision being herein referred to as “ Coverage Debt ”); provided, however , that the amount of Debt (other than Acquired Debt) that may be incurred or issued pursuant to the foregoing by Non-Guarantor Subsidiaries shall not exceed $100.0 million at any one time outstanding.

(b)              Notwithstanding Section 4.06(a), the Parent and its Restricted Subsidiaries may incur Permitted Debt.

(c)              For purposes of determining any particular amount of Debt under this Section 4.06:

(1)              Debt outstanding under the Credit Agreement and the Sumitomo Credit Agreement on the Issue Date will at all times be treated as incurred pursuant to clause (1) of the definition of Permitted Debt and shall not be permitted to be reclassified and

(2)              guarantees or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount will not be included.

(d)              Except as provided above, for purposes of determining compliance with this Section 4.06, in the event that an item of Debt meets the criteria of more than one of the types of Debt described above, including any Coverage Debt and any category of Permitted Debt, the Parent, in its sole discretion, shall classify, and from time to time may reclassify, all or any portion of such item of Debt.

(e)              For purposes of determining compliance of any non-U.S. dollar-denominated Debt with this Section 4.06, the amount outstanding under U.S. dollar-equivalent principal amount of Debt denominated in a foreign currency shall at all times be calculated based on the relevant currency exchange rate in effect on the date such Debt was incurred, in the case of any term Debt, or first committed, in the cases of any revolving credit Debt; provided, however , that if such Debt is incurred to Refinance other Debt denominated in the same or different currency, and such Refinancing would cause the applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such Refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such Refinancing Debt does not exceed the principal amount of such indebtedness being Refinanced.
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(f)              The accrual of interest, the accretion or amortization of original issue discount and the payment of interest on Debt in the form of additional Debt or payment of dividends on Capital Stock in the forms of additional shares of Capital Stock with the same terms will not be deemed to be an incurrence of Debt or issuance of Capital Stock for purposes of this Section 4.06.

Section 4.07                  Limitation on Liens .

(a)              The Parent will not, nor will the Parent permit any Restricted Subsidiary to, issue, assume or guarantee any Debt secured by a Lien upon any Principal Property or upon any shares of stock of any Restricted Subsidiary without effectively providing that the Notes and the Guarantees, together with, if the Parent so determines, any other indebtedness or obligation then existing or thereafter created, ranking equally in right of payment with the Notes or the Guarantees, shall be secured equally and ratably with, or, at the Parent’s option, prior to, such Debt so long as such Debt shall be so secured, except that this restriction will not apply to:

(1)              Liens existing on the Issue Date;

(2)              Liens affecting property of a Person existing at the time it becomes a Restricted Subsidiary or at the time it is merged into or consolidated with the Parent or a Restricted Subsidiary;

(3)              Liens:

(i)              on property existing at the time of acquisition thereof,

(ii)              to secure payment of all or part of the purchase price thereof,

(iii)              to secure Debt incurred prior to, at the time of or within 12 months after such acquisition for the purpose of financing all or part of the purchase price thereof, or

(iv)              assumed or incurred in connection with the acquisition of property;

(4)              Liens on property to secure all or part of the cost of repairing, altering, constructing, improving, exploring, drilling or developing such property, or to secure Debt incurred to provide funds for such purpose;

(5)              Liens in connection with non-recourse Debt;

(6)              Liens on current assets or other personal property, other than shares of stock of Subsidiaries, to secure loans maturing not more than one year from the date of the creation thereof or to secure any renewal thereof for not more than one year at any one time;

(7)              Liens which secure indebtedness owing by a Restricted Subsidiary to the Parent or another Restricted Subsidiary of the Parent;

(8)              Liens on property of any Restricted Subsidiary principally engaged in a financing or leasing business; and
 
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(9)              any extension, renewal or replacement, or successive extensions, renewals or replacements, in whole or in part, of any Lien referred to in the foregoing or of any Debt secured thereby; provided that the principal amount of Debt secured thereby shall not, with respect to Liens referred to in clauses (1) through (4) above, exceed the principal amount of Debt so secured at the time of such extension, renewal or replacement, and that such extension, renewal or replacement Lien shall be limited to all or part of substantially the same property which secured the Lien extended, renewed or replaced, plus improvements on such property.

(b)              Notwithstanding 4.07(a), the Parent and any one or more of its Restricted Subsidiaries may, without securing the Notes and the Guarantees, issue, assume or guarantee Debt secured by Liens which would not be permitted by Section 4.07(a) in an aggregate amount which, together with:

(1) the aggregate principal amount of all of the Parent’s other Debt and Debt of its Restricted Subsidiaries secured by a Lien upon any Principal Property or upon any shares of stock of any Restricted Subsidiary that would not be permitted to be secured by Liens under Section 4.07(a); and

(2) the Attributable Debt in respect of Sale and Lease-Back Transactions existing at such time (other than Sale and Lease-Back Transactions in which the property involved would have been permitted to be secured under Section 4.07(a) or the proceeds of which have been applied in accordance with Section 4.08(a)(2) to the retirement of long-term indebtedness);
 
does not at the time exceed 10% of Consolidated Net Tangible Assets.

 (c)              For purposes of this Section 4.07 and Section 4.08, the sale or other transfer of any interest in property of the character commonly referred to as a “production payment,” is not considered Debt secured by a Lien.

Section 4.08                   Limitation on Sale and Lease-Back Transactions .  (a)              T he Parent will not, nor will the Parent permit any Restricted Subsidiary to, enter into any arrangement with any Person providing for the leasing by the Parent or any Restricted Subsidiary of any Principal Property, except for (x) temporary leases for terms of not more than three years, (y) leasing arrangements between the Parent and a Subsidiary or (z) leasing arrangements between Subsidiaries, title to which property has been or is to be sold or transferred by the Parent or such Restricted Subsidiary to such Person (such transaction, a “ Sale and Lease-Back Transaction ”), unless the proceeds of any such sale are at least equal to the fair value, as determined by the Board of Directors of the Parent, of such property and either:

(1) the Parent or such Restricted Subsidiary would be permitted under Section 4.07(a) to secure Debt by a Lien on the Principal Property to be leased in an amount at least equal to the Attributable Debt in respect of such Sale and Lease-Back Transaction without equally and ratably securing the Notes pursuant to Section 4.07; or

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(2) the Parent applies an amount equal to the fair value of the property so leased to the retirement, within 90 days of the effective date of any such Sale and Lease-Back Transaction, of the Issuer’s or the Parent’s long-term indebtedness which ranks senior or equal to the Notes or the related Guarantee (other than indebtedness held by the Parent or any of its Subsidiaries).

For the avoidance of doubt, Sale and Lease-Back Transactions do not include arrangements with governmental bodies entered into for the purpose of financing the purchase price or the cost of constructing or improving the property subject thereto.

(b)              Notwithstanding the provisions of Section 4.08(a), the Parent or any of its Restricted Subsidiaries may enter into any Sale and Lease-Back Transaction which would not be permitted under Section 4.08(a) if the amount of the Attributable Debt in respect of such Sale and Lease-Back Transaction, together with:

(1) all of the Parent’s Debt and Debt of its Restricted Subsidiaries secured by a Lien on Principal Property or shares of stock of any Restricted Subsidiary and not permitted under Section 4.07(a); and

(2) all other Attributable Debt in respect of Sale and Lease-Back Transactions existing at such time (other than Sale and Lease-Back Transactions in which the property involved would have been permitted to have a Lien in accordance with Section 4.07(a) or the proceeds of which have been applied in accordance with Section 4.08(a)(2) to the retirement of long-term indebtedness);

does not at the time exceed 10% of Consolidated Net Tangible Assets.

Section 4.09                 Future Guarantors .

(a)              After the Issue Date, the Parent will cause each Restricted Subsidiary of the Parent (other than the Issuer) that guarantees (i) the Credit Agreement or (ii) any Material Capital Markets Debt issued by the Parent, the Issuer or any Subsidiary Guarantor to, within 45 days of the incurrence of such guarantee, execute and deliver to the Trustee a supplemental indenture to this Indenture, which may be  in the form of Exhibit C hereto pursuant to which such Restricted Subsidiary will guarantee payment of the Notes on the same terms and conditions as those set forth in this Indenture.

(b)              Each Guarantee of a Subsidiary Guarantor shall be released in accordance with the provisions of Section 11.06.

(c)              Any Subsidiary Guarantor that makes a payment under its Guarantee will be entitled upon payment in full of all obligations that are guaranteed under this Indenture to a contribution from each other Subsidiary Guarantor in an amount equal to such other Subsidiary Guarantor’s pro rata portion of such payment based on the respective net assets of all the Subsidiary Guarantors at the time of such payment determined in accordance with GAAP.

Section 4.11                 Limitation on Asset Sales .

(a)              The Parent will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless :

(1)              the Parent (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the fair market value of the assets or Capital Stock issued or sold or otherwise disposed of as determined by the Parent in good faith; and
 
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(2)              except in the case of a Permitted Asset Swap, at least 75% of the consideration received in the Asset Sale by the Parent or such Restricted Subsidiary is in the form of cash or Eligible  Cash Equivalents.

For the purposes of this Section 4.11(a), the following will be deemed to be cash:

(i)              any liabilities, as shown on the most recent consolidated balance sheet of the Parent or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Guarantee) that are assumed by the transferee of any such assets pursuant to a customary assignment and assumption agreement that releases the Parent or such Restricted Subsidiary from further liability;

(ii)              any securities, notes or other obligations received by the Parent or any such Restricted Subsidiary from such transferee that are converted by the Parent or such Restricted Subsidiary into cash within 180 days of their receipt to the extent of the cash received in that conversion; and

(iii)              any Designated Non-cash Consideration received by the Parent or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value as determined by the Parent in good faith, taken together with all other Designated Non-cash Consideration received pursuant to this clause (iii) that is at that time outstanding, not to exceed $50.0 million 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)              Within 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Parent (or the applicable Restricted Subsidiary, as the case may be) may apply such Net Cash Proceeds at its option:

(A)              to permanently repay (a) Debt under the Credit Agreement and, if the obligation repaid is revolving credit Debt, to correspondingly reduce commitments with respect thereto and/or (b) other unsecured Debt ranking pari passu in right of payment with the Notes or the Parent’s Guarantee of the Notes (provided that if the Parent shall so reduce obligations under such other unsecured Debt, other than the Notes, the Parent will (x) equally and ratably reduce obligations under the Notes under any applicable optional redemption provisions or by open market purchases or (y) make an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders to purchase at a purchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest and additional interest, if any, the pro rata principal amount of Notes);

(B)              to acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes a Restricted Subsidiary of the Parent;

(C)              to make a capital expenditure in or that is used or useful in a Permitted Business or to make expenditures for maintenance, repair or improvement of existing properties and assets;

(D)              to acquire other assets (other than inventory) that are used or useful in a Permitted Business;
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(E)              to repay or repurchase Debt secured by the assets of the Parent or any Restricted Subsidiaries; or

(F)              any combination of the foregoing.

(c)              Any Net Cash Proceeds from Asset Sales that are not applied, invested or subject to an offer to repurchase as provided in Section 4.11(b) will constitute “ Excess Proceeds .” When the aggregate amount of Excess Proceeds with respect to the Notes exceeds $50.0 million, the Issuer will, within 30 days, make an offer to purchase to all Holders of such Notes (an “ Asset Sale Offer ”), and to all holders of other Debt containing provisions similar to those set forth in this Indenture with respect to assets sales (including, without limitation, the 2023 Notes), to purchase the maximum aggregate principal amount of such Notes and such other Debt that may be purchased out of the Excess Proceeds. The offer price for the Notes in any Asset Sale Offer will be equal to 100% of the principal amount plus accrued and unpaid interest to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer in respect of such Notes, the Issuer may use those funds for any purpose not otherwise prohibited by this Indenture and they will no longer constitute Excess Proceeds. If the aggregate principal amount of Notes and other Debt tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Excess Proceeds will be allocated between such Notes and such other Debt based on the principal amount (or accreted value, if applicable) of such Notes and such other Debt tendered and the Trustee will select the Notes to be purchased on a pro rata basis among all such Notes tendered (subject to DTC procedures). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.

(d)              The Issuer will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of any Notes as a result of an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale Offer provisions of the Notes, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Asset Sale Offer provisions of the Notes by virtue of such conflict.

Section 4.12                  Effectiveness of Covenants .(a)         Following the first day (such date, the “ Termination Date ”):

(1)              the Notes have a rating of Investment Grade from both S&P and Moody’s and

(2)              no Default has occurred and is continuing under this Indenture, the Issuer, the Parent and its Restricted Subsidiaries shall no longer be subject to the provisions of Sections 4.05, 4.06, 4.09 and 4.11.

(b)              In the event that the Notes’ credit rating is downgraded from Investment Grade by any Rating Agency, the provisions of Sections 4.05, 4.06, 4.09 and 4.11 will not thereafter be reinstated.

(c)              Promptly following the Termination Date, the Issuer shall provide an Officers’ Certificate to the Trustee regarding such occurrence. The Trustee shall have no obligation to independently determine or verify if a Termination Date has occurred or notify the Holders of the Termination Date. The Trustee may provide a copy of such Officers’ Certificate to any Holder upon request.
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1.05              Article 5 “Successors” is hereby amended and restated in its entirety as follows:

ARTICLE 5

SUCCESSORS

Section 5.01                  Consolidation, Merger, Conveyance, Transfer or Lease .

(a)              The Issuer will not merge or consolidate with any other Person or sell or convey all or substantially all of its assets to any Person, unless :

(1)              the successor Person (if other than the Issuer) (the “ Successor Issuer ”) shall be a corporation organized under the laws of the United States or any state thereof and shall expressly assume (a) the due and punctual payment of the principal of and premium, if any, and interest on all the Notes, according to their tenor, and the due and punctual performance and observance of all of the covenants and conditions under this Indenture to be performed or observed by the Issuer, by supplemental indenture satisfactory in form to the Trustee, executed and delivered to the Trustee by such Person and (b) all obligations of the Issuer under the Registration Rights Agreement, by a written instrument satisfactory in form to the parties thereto, executed and delivered to such parties by such Person;

(2)              the Successor Issuer shall not, immediately after such merger or consolidation, or such sale or conveyance, be in default in the performance of any such covenant or condition;

(3)              the Parent and each Subsidiary Guarantor (unless the Parent or such Subsidiary Guarantor is the other party to the transactions described above, in which case the preceding clause (1) shall apply) shall have by supplemental indenture confirmed that the applicable Guarantee shall apply to such Successor Issuer’s obligations under this Indenture and the Notes and shall have by written agreement confirmed that its obligations under the Registration Rights Agreement shall continue to be in effect; and

(4)              the Issuer shall have provided the Trustee with an Opinion of Counsel and Officers’ Certificate each stating that such merger or consolidation, or such sale or conveyance, and such supplemental indenture, if any, comply with this Indenture.

(b)              Subject to the limitations set forth in this Indenture, the Successor Issuer will succeed to, and be substituted for, the Issuer under this Indenture, the Notes and the Registration Rights Agreement.

(c)              the Parent will not merge or consolidate with any other Person or sell or convey all or substantially all of its assets to any Person, unless:

(1)              the successor Person (if other than the Parent) (the “ Successor Guarantor ”) shall be a corporation organized under the laws of the United States or any state thereof and shall expressly assume by supplemental indenture satisfactory in form to the Trustee, executed and delivered to the Trustee by such Person all the obligations of the Parent under the Guarantee, this Indenture and the Registration Rights Agreement;
 

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(2)              the Successor Guarantor shall not, immediately after such merger or consolidation, or such sale or conveyance, be in default in the performance of any such covenant or condition; and

(3)              the Successor Guarantor shall have provided the Trustee with an Opinion of Counsel and Officers’ Certificate each stating that such merger or consolidation, or such sale or conveyance, and such supplemental indenture, if any, comply with this Indenture.

(d)              The Parent will not permit any Subsidiary Guarantor to merge or consolidate with any other Person or sell or convey all or substantially all of its assets to any Person, unless:


(1)              (A)                the successor Person (if other than the Parent, the Issuer or such Subsidiary Guarantor) (the “ Successor Subsidiary Guarantor ”) shall expressly assume by supplemental indenture satisfactory in form to the Trustee, executed and delivered to the Trustee by such Person all the obligations of such Subsidiary Guarantor under the applicable Guarantee and this Indenture;

(B)              the Successor Subsidiary Guarantor shall not, immediately after such merger or consolidation, or such sale or conveyance, be in default in the performance of any such covenant or condition; and

(C)              the Successor Subsidiary Guarantor shall have provided the Trustee with an Opinion of Counsel and Officers’ Certificate confirming compliance with this Indenture; or

(2)              the merger, consolidation, sale or conveyance complies with Section 4.11.

(e)              Notwithstanding anything in the foregoing provisions of this Section 5.01 to the contrary, this Section 5.01 shall not apply to the transactions contemplated by the Separation Agreement or by the Merger Agreement.

Section 5.02                  Successor Entity Substituted .

Upon any merger, consolidation or sale or conveyance of all or substantially all of the assets of the Parent, any Subsidiary Guarantor or the Issuer, as the case may be, in accordance with Section 5.01, the Parent, such Subsidiary Guarantor or the Issuer, as the case may be, will be released from its obligations under this Indenture, the Notes, the Guarantees and the Registration Rights Agreement, as applicable, and the Successor Issuer, the Successor Guarantor or the Successor Subsidiary Guarantor, as the case may be, will succeed to, and be substituted for, and may exercise every right and power of, the Parent, such Subsidiary Guarantor or the Issuer, as the case may be, under this Indenture, the Notes, the Registration Rights Agreement and the Guarantees, as applicable.

1.06              Section 6.01 “Events of Default” is hereby amended and restated in its entirety as follows:

Section 6.01                  Events of Default .

Each of the following is an “ Event of Default ”:
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(1)              default in the payment in respect of the principal of, or premium, if any, on any Note when due and payable (whether at Stated Maturity or upon repurchase, acceleration,  optional redemption or otherwise);

(2)              default in the payment of any interest (including Additional Interest (as required by the Registration Rights Agreement)) upon any Note when it becomes due and payable, and continuance of such default for a period of 30 days;

(3)              default in the performance, or breach, of any covenant or agreement of the Parent or any Restricted Subsidiary in this Indenture (other than a covenant or agreement a default in which performance or which breach is specifically dealt with in clauses (1) or (2) above), and continuance of such default or breach for a period of 60 days after written notice thereof has been given to the Issuer by the Trustee or to the Issuer and the Trustee by the Holders of at least 25% in aggregate principal amount of the outstanding Notes ( provided that, and without limiting the foregoing in this clause (3), in the case of a default or breach of any covenant or agreement described under Section 4.03, no Event of Default shall occur (and any such default or breach shall be deemed to not have occurred for all purposes under this Indenture) with respect to any failure to furnish or file any information or report required thereunder if the Parent files or furnishes such information or report within 120 days after the Parent was required (or would have been required) to file the same pursuant to the Commission’s rules and regulations);

(4)              the applicable Guarantee ceases to be in full force and effect (except as contemplated by this Indenture) or is declared null and void in a judicial proceeding or the Parent or a Subsidiary Guarantor denies in writing or disaffirms in writing its obligations under this Indenture or Guarantee, other than by reason of the termination of this Indenture or the release of such Guarantee in accordance with the terms of this Indenture;

(5)              the Parent or a Significant Subsidiary shall (i) voluntarily commence any proceeding or file any petition seeking relief under Title 11 of the United States Code or any other federal or state bankruptcy, insolvency or similar law, (ii) consent to the institution of, or fail to controvert in a timely and appropriate manner, any such proceeding or the filing of any such petition, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator or similar official for the Parent or a Significant Subsidiary or for a substantial part of its property, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors, (vi) admit in writing its inability or fail generally to pay its debts as they become due or (vii) take corporate action for the purpose of effecting any of the foregoing; or

(6)              the entry of an order or decree by a court having competent jurisdiction in the premises for (i) relief in respect of the Parent or a Significant Subsidiary or a substantial part of the property of the Parent or a Significant Subsidiary, under Title 11 of the United States Code or any other federal or state bankruptcy, insolvency or similar law, (ii) the appointment of a receiver, trustee, custodian, sequestrator or similar official for the Parent or a Significant Subsidiary or for a substantial part of the property of the Parent or a Significant Subsidiary or (iii) the winding-up or liquidation of the Parent or a Significant Subsidiary; and such order or decree shall continue unstayed and in effect for 60 days.
 
1.07              Section 6.02 “Acceleration” is hereby amended and restated in its entirety as follows:

Section 6.02                  Acceleration (a)        If an Event of Default (other than an Event of Default described in clauses (5) and (6) of Section 6.01) with respect to the Parent or the Issuer occurs and is continuing, then and in every such case, unless the principal of all the Notes have already become due and payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount of the then outstanding Notes may declare the principal of, premium, if any, and accrued and unpaid interest on the Notes to be due and payable immediately by a notice in writing to the Issuer (and to the Trustee if given by such Holders).  Upon such declaration, such principal, premium, if any, and accrued and unpaid interest, if any, will be due and payable.

 
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(b)              If, at any time after the principal amount of the Notes shall have been so declared to be immediately due and payable, and before any judgment or decree for the payment of the moneys due on account of such declaration shall have been obtained or entered, all defaults under this Indenture, other than the nonpayment of principal of or premium, if any, or accrued interest on the Notes which shall have become due by acceleration shall have been remedied—then and in every such case the Holders of a majority in aggregate principal amount of the Notes then outstanding, by written notice to the Issuer and to the Trustee, may waive all defaults and rescind and annul such declaration and its consequences; but no such waiver or rescission and annulment shall extend or shall, affect any subsequent default, or shall impair any right consequent thereon.

(c)              The Trustee may withhold from Holders notice of any Default (except any Default in the payment of principal of, premium, if any, or interest on the Notes) if the Trustee determines that withholding notice is in the interests of such Holders to do so.

(d)              In case an Event of Default described in clauses (5) or (6) of Section 6.01 with respect to the Parent or the Issuer occurs, the principal of, premium, if any, and accrued and unpaid interest, if any, on all the then outstanding Notes will ipso facto become immediately due and payable without any declaration or other act on the part of the Trustee or any Holders.

1.08              Section 6.09 “Restoration of Rights and Remedies” is hereby amended as follows:

(i)              Before the reference to “the Subsidiary Guarantors”, “the Parent,” is inserted.

1.09              Section 6.12 “Trustee May File Proofs of Claim” is hereby amended as follows:

(i)              Before the reference to “the Subsidiary Guarantors”, “the Parent and” is added.

1.10              Section 6.13 “Priorities” is hereby amended as follows:

(i)              Before the reference to “a Subsidiary Guarantor” in Section 6.13(3), “the Parent or” is added.

1.11              Section 7.02 “Rights of Trustee” is hereby amended as follows:

(i)              After each reference to “the Issuer “ in Section 7.02(e), “, the Parent” is added.

1.12              Section 8.02 “Defeasance and Discharge” is hereby amended and restated in its entirety as follows:

Section 8.02                  Defeasance and Discharge .(a)                  Upon the Issuer’s exercise under Section 8.01 of the option applicable to this Section 8.02, the Issuer, the Parent and the Subsidiary Guarantors shall, subject to the satisfaction of the conditions set forth in Section 8.04, be deemed to have been discharged from their obligations with respect to the Indenture, all outstanding Notes and Guarantees on the date the conditions set forth below are satisfied (“ Defeasance ”).  For this purpose, Defeasance means that the Issuer shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes, which shall thereafter be deemed to be “outstanding” only for the purposes of Section 8.05 and the other Sections of this Indenture referred to in clauses (1) through (5) below, and to have satisfied all of its other obligations under such Notes and this Indenture, including that of the Parent and the Subsidiary Guarantors (and the Trustee, on demand of and at the expense of the Issuer, shall execute proper instruments acknowledging the same), except for the following provisions which shall survive until otherwise terminated or discharged hereunder:
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(1)              the rights of Holders to receive payments in respect of the principal of and premium, if any, and interest on the Notes when such payments are due;

(2)              the Issuer’s obligations with respect to the Notes concerning issuing temporary Notes, registration of Notes, mutilated, destroyed, lost or stolen Notes and the maintenance of an office or agency for payment and money for security payments held in trust;

(3)              the rights, powers, trusts, duties and immunities of the Trustee;

(4)              the Issuer’s right of optional redemption pursuant to Section 3.07; and

(5)              this Section 8.02.

(b)              Following the Issuer’s exercise of its Defeasance option, payment of the Notes may not be accelerated because of an Event of Default.

(c)              Subject to compliance with this Article 8, the Issuer may exercise its option under this Section 8.02 notwithstanding the prior exercise of its option under Section 8.03.

1.13              Section 8.03 “Covenant Defeasance” is hereby amended and restated in its entirety as follows:

Section 8.03                  Covenant Defeasance .Upon the Issuer’s exercise under Section 8.01 of the option applicable to this Section 8.03, the Issuer, the Parent and the Subsidiary Guarantors shall, subject to the satisfaction of the conditions set forth in Section 8.04, be released from their obligations under the covenants contained in Sections 3.09, 4.03, 4.05, 4.06, 4.07, 4.08, 4.09, 4.10 and 4.11 with respect to the outstanding Notes, and the Subsidiary Guarantors shall be deemed to have been discharged from their obligations with respect to all Guarantees (other than the Guarantee of the Parent), on and after the date the conditions set forth in Section 8.04 are satisfied (“ Covenant Defeasance ”), and the Notes shall thereafter be deemed not “outstanding” for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed “outstanding” for all other purposes hereunder (it being understood that such Notes shall not be deemed outstanding for accounting purposes).  For this purpose, Covenant Defeasance means that, with respect to this Indenture and the outstanding Notes, the Issuer may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event of Default under Section 6.01, but, except as specified above, the remainder of this Indenture, the Notes and the Guarantee of the Parent shall be unaffected thereby.  In addition, upon the Issuer’s exercise under Section 8.01 of the option applicable to this Section 8.03, subject to the satisfaction of the conditions set forth in Section 8.04, an Event of Default specified in Section 6.01(3) (only with respect to covenants that are released as a result of such Covenant Defeasance) and 6.01(4), (5) (solely with respect to the Parent or any Significant Subsidiary) and (6) (solely with respect to the Parent or any Significant Subsidiary) will no longer constitute an Event of Default.
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1.14              Section 8.04 “Conditions to Legal or Covenant Defeasance” is hereby amended as follows:

(i)              Before each reference to “the Issuer” in Section 8.04(a)(5), “the Parent,” is added.

1.15              Section 8.07 “Reinstatement” is hereby amended as follows:

(i)              After the reference to “the Issuer’s”, “, the Parent’s” is added.

1.16              Section 9.01 “Without Consent of Holders” is hereby amended and restated in its entirety as follows:

Section 9.01                  Without Consent of Holders .

  (a)              Notwithstanding Section 9.02, without the consent of any Holder, the Issuer, the Parent and the Trustee may, at any time and from time to time, amend or supplement this Indenture:

(1)              to evidence the succession of another Person to the Parent, the Issuer or a Subsidiary Guarantor and the assumption by any such successor of the covenants of the Parent, the Issuer or such Subsidiary Guarantor, as applicable, under this Indenture, the Notes and the Guarantees thereof;

(2)              to add to the covenants of the Parent, the Issuer and the Subsidiary Guarantors for the benefit of the applicable Holders, or to surrender any right or power herein conferred upon the Parent, the Issuer and the Subsidiary Guarantors;

(3)              to add additional Events of Default;

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

(5)              to evidence and provide for the acceptance of appointment under this Indenture by a successor Trustee; provided that the successor Trustee is otherwise qualified and eligible to act as such under the terms of this Indenture;

(6)              to provide for or confirm the issuance of Additional Notes in accordance with the terms of this Indenture;

(7)              to add a Subsidiary Guarantor in accordance with this Indenture or release (a) the Parent in accordance with Article V or (b) a Subsidiary Guarantor from its Guarantee when permitted by the terms of this Indenture;

(8)              to cure any ambiguity, defect, omission, mistake or inconsistency;

(9)              to make any other provisions with respect to matters or questions arising under this Indenture; provided , however , that such actions pursuant to this clause (9) shall not adversely affect the interests of the Holders in any material respect, as determined in good faith by the Board of Directors of the Parent;
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(10)              to provide for the issuance of Exchange Notes, which shall be treated, together with any outstanding Notes, as a single class of securities;

(11)              to conform the text of this Indenture or the Notes to any provision of the “Description of notes” section of the Offering Memorandum to the extent that the Trustee has received an Officers’ Certificate stating that such text constitutes an unintended conflict with the description of the corresponding provision in the “Description of notes” section of the Offering Memorandum; or

(12)              to effect or maintain the qualification of this Indenture under the Trust Indenture Act.

Upon the request of the Issuer subject to the terms hereof, and upon receipt by the Trustee of the documents described in Section 12.04, the Trustee shall join with the Issuer, the Parent and the Subsidiary Guarantors in the execution of any amended or supplemental indenture authorized or permitted by the terms of this Indenture and to make any further appropriate agreements and stipulations that may be therein contained, but the Trustee shall not be obligated to enter into such amended or supplemental indenture that affects its own rights, duties or immunities under this Indenture or otherwise.

1.17              Section 9.02             “With Consent of Holders” is hereby amended and restated in its entirety as follows:

Section 9.02                 With Consent of Holders .  (a)                 Except as provided in Section 9.01 and this Section 9.02, with the consent of the Holders of not less than a majority in aggregate principal amount of the then outstanding Notes, the Parent, the Issuer and the Trustee may amend or supplement this Indenture for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture, or of the Notes or the related Guarantees, or of modifying in any manner the rights of the Holders under this Indenture, including the definitions herein.  Section 2.08 and Section 2.09 shall determine which Notes are considered to be “outstanding” for the purposes of this Section 9.02.

(b)              Without the consent of each affected Holder, an amendment, supplement or waiver under this Section 9.02 may not (with respect to any Notes held by a non-consenting Holder):

(1)              change the Stated Maturity of any Note or of any installment of interest on any Note, or reduce the amount payable in respect of the principal thereof or the rate of interest thereon or any premium payable thereon, or reduce the amount that would be due and payable on acceleration of the maturity thereof, or change the place of payment where, or the coin or currency in which, any Note or any premium or interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof, or change the date on which any Notes may be subject to redemption or reduce the redemption price therefor;

(2)              reduce the percentage in aggregate principal amount of the then outstanding Notes, the consent of whose Holders is required for any such amendment or supplement, or the consent of whose Holders is required for any waiver of compliance with covenants relating to the payment of principal of or premium, if any, or interest on the Notes or related defaults or Events of Default and their consequences (except with respect to a rescission of acceleration of the Notes by the Holders of a majority in aggregate principal amount of the Notes then outstanding, and a waiver of the Event of Default under Section 6.01(1) or 6.01(2) that resulted from such acceleration) provided for in this Indenture;
 

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(3)              modify the obligations of the Issuer to make offers to purchase upon a Change of Control if such modification was done after the occurrence of the related Change of Control;

(4)              modify or change any provision of this Indenture affecting the ranking of the Notes in a manner adverse to the applicable Holders; or

(5)              modify any of the provisions of this Section 9.02(b) or provisions relating to waiver of compliance with covenants relating to the payment of principal of or premium, if any, or interest on the Notes or related defaults or Events of Default and their consequences (except with respect to a rescission of acceleration of the Notes by the Holders of a majority in aggregate principal amount of the Notes then outstanding, and a waiver of the Event of Default under Section 6.01(1) or 6.01(2) that resulted from such acceleration), except to increase any such percentage required for such actions or to provide that such other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each outstanding Note issued thereunder that is affected thereby;

(c)              Upon the request of the Issuer, and upon the filing with the Trustee of evidence reasonably satisfactory to the Trustee of the consent of the Holders as aforesaid, and upon receipt by the Trustee of the documents described in Section 7.02 and Section 12.04, the Trustee shall, subject to the terms hereof, join with the Issuer, the Parent and the Subsidiary Guarantors in the execution of such amended or supplemental indenture unless such amended or supplemental indenture directly affects the Trustee’s own rights, duties or immunities under this Indenture, in which case the Trustee may, but shall not be obligated to, enter into such amended or supplemental indenture.

(d)              It shall not be necessary for the consent of the Holders under this Section 9.02 to approve the particular form of any proposed amendment, supplement or waiver.  It shall be sufficient if such consent approves the substance of such proposed amendment or supplement.  A consent to any amendment, supplement or waiver under this Indenture by any Holder given in connection with a tender of such Holder’s Notes will not be rendered invalid by such tender.

(e)              A consent to any amendment, supplement or waiver of this Indenture or the Notes or the Guarantee by any Holder given in connection with a tender of such Holder’s Notes will not be rendered invalid by such tender.

1.18              Section 10.01 “Satisfaction and Discharge” is hereby amended and restated in its entirety as follows:

Section 10.01              Satisfaction and Discharge .  (a)               This Indenture will be discharged, and will cease to be of further effect as to all Notes, when either:

(1)              all Notes theretofore authenticated and delivered have been delivered to the Trustee for cancellation; or

(2)(A) all such Notes not theretofore delivered to the Trustee for cancellation have become due and payable or will become due and payable within one year or are to be called for redemption within one year (a “ Discharge ”) under irrevocable arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Issuer, and the Issuer has irrevocably deposited or caused to be deposited with the Trustee funds in an amount sufficient to pay and discharge the entire indebtedness on the Notes, not theretofore delivered to the Trustee for cancellation, for principal of, premium, if any, and accrued interest to the Stated Maturity or date fixed for redemption;
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(B)              the Issuer, the Parent or the applicable Subsidiary Guarantor has paid or caused to be paid all other sums then due and payable under this Indenture by the Issuer with respect to the Notes;

(C)              the deposit will not result in a breach or violation of, or constitute a default under, any instrument (other than this Indenture) to which the Issuer, the Parent or any Subsidiary Guarantor is a party or by which the Issuer, the Parent or the applicable Subsidiary Guarantor is bound;

(D)              the Issuer has delivered irrevocable instructions to the Trustee under this Indenture to apply the deposited money toward the payment of the Notes at maturity or on the redemption date, as the case may be; and

(E)              the Issuer has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel each stating that all conditions precedent under this Indenture relating to the Discharge have been complied with.

(b)              Notwithstanding the satisfaction and discharge of this Indenture, if money shall have been deposited with the Trustee pursuant to subclause (A) of clause (2) of Section 10.01(a), the provisions of Section 10.02 and Section 8.06 shall survive.

1.19              Article 11 “Guarantees” is hereby amended and restated in its entirety as follows:

ARTICLE 11

GUARANTEES

Section 11.01              Guarantee .

(a)              Subject to this Article 11, each of the Parent and the Subsidiary Guarantors hereby, jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior unsecured basis, to each Holder and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Issuer hereunder or thereunder, that: (1) the principal, premium, if any, and interest on the Notes shall be promptly paid in full when due, whether at Stated Maturity, by acceleration, redemption or otherwise, and interest on the overdue principal and interest on the Notes, if any, if lawful, and all other obligations of the Issuer to the Holders or the Trustee hereunder or under the Notes shall be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (2) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise (the obligations so guaranteed, collectively, the “ Guaranteed Obligations ”).  Failing payment by the Issuer when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Parent and the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately.  Each of the Parent and Subsidiary Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.

(b)              The Parent and the Subsidiary Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, the recovery of any judgment against the Issuer, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor.  The Parent and each Subsidiary Guarantor hereby waive diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuer, any right to require a proceeding first against the Issuer, protest, notice and all demands whatsoever and covenants that this Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture, or pursuant to Section 11.06.
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(c)              Each of the Parent and the Subsidiary Guarantors also agrees, jointly and severally, to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) Incurred by the Trustee or any Holder in enforcing any rights under this Section 11.01.

(d)              If any Holder or the Trustee is required by any court or otherwise to return to the Issuer, the Parent, the Subsidiary Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to the Issuer, the Parent or the Subsidiary Guarantors, any amount paid either to the Trustee or such Holder, this Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect.

(e)              The Parent and each Subsidiary Guarantor agree that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Guaranteed Obligations until payment in full of all Guaranteed Obligations.  The Parent and each Subsidiary Guarantor further agree that, as between the Parent and the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (1) the maturity of the Guaranteed Obligations may be accelerated as provided in Article 6 for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations, and (2) 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 the Parent and the Subsidiary Guarantors for the purpose of this Guarantee.  The Parent and the Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor or Parent, as the case may be, so long as the exercise of such right does not impair the rights of the Holders under the Guarantees.

(f)              Each Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Issuer for liquidation or reorganization, should the Issuer become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Issuer’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes or the Guarantees, whether as a “voidable preference,” “fraudulent transfer” or otherwise, all as though such payment or performance had not been made.  In the event that any payment or any part thereof, is rescinded, reduced, restored or returned, the Notes shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.

(g)              In case any provision of any Guarantee shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

(h)              Each payment to be made by the Parent or a Subsidiary Guarantor in respect of its Guarantee shall be made without set-off, counterclaim, reduction or diminution of any kind or nature.

Section 11.02               Limitation on Parent and Subsidiary Guarantor Liability .

Each Subsidiary Guarantor and the Parent, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Guarantee of such Subsidiary Guarantor and the Parent not constitute a fraudulent conveyance or a fraudulent transfer for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to any Guarantee.  To effectuate the foregoing intention, the Trustee, the Holders, the Parent and the Subsidiary Guarantors hereby irrevocably agree that the obligations of each Subsidiary Guarantor and the Parent shall be limited to the maximum amount as will, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Subsidiary Guarantor or the Parent that are relevant under such laws and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Subsidiary Guarantor or the Parent in respect of the obligations of such other Subsidiary Guarantor or the Parent under this Article 11, result in the obligations of such Subsidiary Guarantor or the Parent under its Guarantee not constituting a fraudulent conveyance or fraudulent transfer under applicable law.  Each Subsidiary Guarantor and the Parent that makes a payment under its Guarantee will be entitled upon payment in full of all Guaranteed Obligations under this Indenture to a contribution from each other Subsidiary Guarantor or the Parent, as the case may be, in an amount equal to such other Subsidiary Guarantor’s or the Parent’s pro rata portion of such payment based on the respective net assets of all the Subsidiary Guarantors and the Parent at the time of such payment, determined in accordance with GAAP.

 
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Section 11.03              Execution and Delivery .

(a)              To evidence its Guarantee set forth in Section 11.01, each Subsidiary Guarantor and the Parent hereby agree that this Indenture or a supplemental indenture to this Indenture shall be executed on behalf of such Subsidiary Guarantor and the Parent, as the case may be, by an Officer or person holding an equivalent title.

(b)              Each Subsidiary Guarantor and the Parent hereby agree that its Guarantee set forth in Section 11.01 shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Guarantee on the Notes.

(c)              If an Officer whose signature is on this Indenture or a supplemental indenture to this Indenture no longer holds that office at the time the Trustee authenticates the Note, the Guarantees shall be valid nevertheless.

(d)              The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Guarantee set forth in this Indenture on behalf of the Subsidiary Guarantors and the Parent, as the case may be.

Section 11.04              Subrogation .

Each Subsidiary Guarantor and the Parent shall be subrogated to all rights of Holders against the Issuer in respect of any amounts paid by any Subsidiary Guarantor or the Parent, as the case may be, pursuant to the provisions of Section 11.01; provided that, if an Event of Default has occurred and is continuing, no Subsidiary Guarantor or the Parent shall be entitled to enforce or receive any payments arising out of, or based upon, such right of subrogation until all amounts then due and payable by the Issuer under this Indenture or the Notes shall have been paid in full.

Section 11.05               Benefits Acknowledged .

Each Subsidiary Guarantor and the Parent acknowledge that it will receive direct and indirect benefits from the financing arrangements contemplated by this Indenture and that the guarantee and waivers made by it pursuant to its Guarantee are knowingly made in contemplation of such benefits.
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Section 11.06              Release of Guarantees .

(a)              A Guarantee by a Subsidiary Guarantor shall be automatically and unconditionally released and discharged, and no further action by such Subsidiary Guarantor, the Issuer or the Trustee shall be required for the release of such Subsidiary Guarantor’s Guarantee, upon:

(1)(i)              upon the sale or other disposition (including by way of a consolidation or merger) of such Subsidiary Guarantor;

(ii)              upon the sale or disposition of all or substantially all assets of such Subsidiary Guarantor;

(iii)              at such time as such Subsidiary Guarantor no longer guarantees any (i) Credit Agreement or (ii) Material Capital Markets Debt of the Parent, the Issuer or any Subsidiary Guarantor;

(iv)              upon defeasance of the Notes, as provided under Article 8;

(v)         at such time as such Subsidiary Guarantor is no longer a Restricted Subsidiary; or

(vi)        as described under Article 9

in the case of Section 11.06(a)(1)(i) and (ii), other than to the Parent or a Restricted Subsidiary of the Parent; and

(2)              such Subsidiary Guarantor delivering to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for in this Indenture relating to such release have been complied with.

(b)              At the written request of the Issuer, the Trustee shall execute and deliver any documents reasonably required in order to evidence such release, discharge and termination in respect of the applicable Guarantee.

1.20              Section 12.02            “Notices” is hereby amended as follows:

(i)              After the first and last references to “the Issuer,” in Section 12.02(a)  “the Parent,” is added.

(ii)              After the reference to “the Issuer” in Section 12.02(a) immediately prior to the notice information for the Issuer, “, the Parent” is added.

1.21              Section 12.03 “Communication by Holders with Other Holders”  is hereby amended as follows:

(i)              After the reference to “the Issuer,” “the Parent,” is added.

1.22              Section 12.04 “Certificate and Opinion as to Conditions Precedent” is hereby amended as follows:

(i)              After each reference to “the Issuer”, “, the Parent” is added.
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1.23              Section 12.07             “No Personal Liability of Directors, Officers, Employees, Members, Partners and Stockholders” is hereby amended as follows:

(i)              After the second reference to “or any Subsidiary Guarantor”, “, the Parent” is added.

(ii)              After the first and last reference to “Subsidiary Guarantor”, “or the Parent” is added.

1.24              Section 12.09              “Waiver of Jury Trial” is hereby amended as follows:

(i)              After the reference to “THE ISSUER”, “, THE PARENT” is added.

1.25              Section 12.12              “Successors” is hereby amended as follows:

(i)              After the reference to “Subsidiary Guarantor”, “and the Parent” is added.

1.26              Section 12.19              “Qualification of Indenture” is hereby amended as follows:

(i)              After each reference to “the Issuer”, “, the Parent” is added.

Section 2.                       Application of Supplemental Indenture .

The Base Indenture, as supplemented by this First Supplemental Indenture, is in all respects ratified and confirmed.  This First Supplemental Indenture shall be deemed part of the Base Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby.

Section 3.                       Governing Law .

THIS FIRST SUPPLEMENTAL INDENTURE WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

Section 4.                       Waiver of Jury Trial .

EACH OF THE ISSUER, THE PARENT AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS FIRST SUPPLEMENTAL INDENTURE OR THE TRANSACTIONS CONTEMPLATED HEREBY.

Section 5.                       Successors .

All agreements of the Issuer, the Parent and the Trustee in this First Supplemental Indenture shall bind their successors.

Section 6.                       Counterpart Originals .
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The parties may sign any number of copies of this First Supplemental Indenture.  Each signed copy shall be an original, but all of them together represent the same agreement.

Section 7.                       Trustee Makes No Representation .

The Trustee makes no representation as to the validity or sufficiency of this First Supplemental Indenture.
 

[Signature Page Follows]
 

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IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be duly executed as of the day and year first above written.

 
 
BLUE CUBE SPINCO INC., as Issuer
 
       
 
By:
   
    Name:  
    Title:  
       

 
 
OLIN CORPORATION, as Parent
 
       
 
By:
   
    Name:  
    Title:  
       
 
 
 
U.S. BANK NATIONAL ASSOCIATION, as Trustee
 
       
 
By:
   
    Name:  
    Title:  
       


 


 
 
 
 
Exhibit 4.3
 
FIRST SUPPLEMENTAL INDENTURE

FIRST SUPPLEMENTAL INDENTURE, dated as of October 5, 2015 (this “ First Supplemental Indenture ”), among Blue Cube Spinco Inc., a Delaware corporation (the “ Issuer ”), Olin Corporation, a Virginia corporation (the “ Parent ”), and U.S. Bank National Association, as trustee (the “ Trustee ”), to that certain indenture dated as of October 5, 2015 between the Issuer and the Trustee (the “ Base Indenture ” and, together with the First Supplemental Indenture, the “ Indenture ”).

WITNESSETH :

WHEREAS, capitalized terms used and not defined herein shall have the meanings ascribed to such terms in the Base Indenture;

WHEREAS, the Issuer executed and delivered to the Trustee the Base Indenture, providing for the issuance of the Issuer’s 9.75% Senior Notes due 2023 (the “ Notes ”);

WHEREAS, Section 9.01 of the Base Indenture provides that the Issuer and the Trustee may amend or supplement the Base Indenture without the consent of Holders as provided in this First Supplemental Indenture;

WHEREAS, all conditions and requirements necessary to make this First Supplemental Indenture a valid and binding instrument in accordance with its terms and the terms of the Base Indenture have been satisfied; and

WHEREAS, the   Issuer, the Parent and the Trustee desire to execute and deliver this First Supplemental Indenture.

NOW, THEREFORE, in consideration of the premises and of the mutual covenants herein contained, the Issuer, the Parent and the Trustee hereby agree as follows:

Section 1.                            Amendments to the Base Indenture .

1.01.              The following definitions in Section 1.01 “Definitions” are hereby amended and restated in their entirety or added to Section 1.01 if not therein, as applicable, as follows:

“ Acquired Debt ” means Debt (1) of a Person (including an Unrestricted Subsidiary) existing at the time such Person becomes a Restricted Subsidiary, or is merged with or into the Parent or a Restricted Subsidiary, or (2) assumed in connection with the acquisition of assets from such Person. Acquired Debt shall be deemed to have been incurred, with respect to clause (1) of the preceding sentence, on the date such Person becomes a Restricted Subsidiary and, with respect to clause (2) of the preceding sentence, on the date of consummation of such acquisition of assets.

“ Asset Acquisition ” means:

(1) an Investment by the Parent or any Restricted Subsidiary in any other Person pursuant to which such Person shall become a Restricted Subsidiary, or shall be merged with or into the Parent or any Restricted Subsidiary; or

(2) the acquisition by the Parent or any Restricted Subsidiary of the assets of any Person which constitute all or substantially all of the assets of such Person, any division or line of business of such Person or any other properties or assets of such Person other than in the ordinary course of business and consistent with past practices.
 

 
“ Asset Sale ” means any transfer, conveyance, sale, lease or other disposition (including, without limitation, dispositions pursuant to any consolidation or merger) by the Parent or any of its Restricted Subsidiaries to any Person in any single transaction or series of transactions of:

(i) Capital Stock in another Person (other than directors’ qualifying shares or shares or interests required to be held by foreign nationals pursuant to local law); or

(ii) any other property or assets (other than in the normal course of business, including any sale or other disposition of obsolete or permanently retired equipment);

provided, however , that the term “Asset Sale” shall exclude:

(1) any asset disposition permitted by Section 5.01 that constitutes a disposition of all or substantially all of the assets of the Parent and its Restricted Subsidiaries taken as a whole;

(2) any transfer, conveyance, sale, lease or other disposition of property or assets, the gross proceeds of which (exclusive of indemnities) do not exceed in any one or related series of transactions $25.0 million;

(3) sales or other dispositions of cash or Eligible Cash Equivalents;

(4) sales of interests in Unrestricted Subsidiaries;

(5) the sale and leaseback of any assets within 90 days of the acquisition thereof; provided that any assets acquired in the Transactions shall be deemed to have been acquired on the Issue Date;

(6) the disposition of assets that, in the good faith judgment of the Parent, are no longer used or useful in the business of such entity;

(7) a Restricted Payment or Investment that is otherwise permitted by this Indenture;

(8) any trade-in of equipment in exchange for other equipment; provided, however that in the good faith judgment of the Parent, the Parent or such Restricted Subsidiary receives equipment having a fair market value equal to or greater than the equipment being traded in;

(9) the creation of a Lien (but not the sale or other disposition of the property subject to such Lien);

(10) leases or subleases in the ordinary course of business to third persons not interfering in any material respect with the business of the Parent or any of its Restricted Subsidiaries and otherwise in accordance with the provisions of this Indenture;

(11) any disposition by a Restricted Subsidiary to the Parent or by the Parent or a Restricted Subsidiary to a Restricted Subsidiary;
 

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(12) dispositions of accounts receivable in connection with the collection or compromise thereof in the ordinary course of business and consistent with past practice;

(13) licensing or sublicensing of intellectual property or other general intangibles in accordance with industry practice in the ordinary course of business;

(14) any transfer of accounts receivable, or a fractional undivided interest therein, by a Receivable Subsidiary in a Qualified Receivables Transaction; or

(15) sales of accounts receivable to a Receivable Subsidiary pursuant to a Qualified Receivables Transaction for the fair market value thereof as determined by the Parent in good faith; including cash or other financial accommodation, such as the provision of letters of credit by such Receivable Subsidiary on behalf of or for the benefit of the transferor of such accounts receivable, in an amount at least equal to 75% of the fair market value thereof as determined by the Parent in good faith (for the purposes of this clause (15), Purchase Money Notes will be deemed to be cash).

For purposes of this definition, any series of related transactions that, if effected as a single transaction, would constitute an Asset Sale, shall be deemed to be a single Asset Sale effected when the last such transaction which is a part thereof is effected.

“ Board of Directors ” means:

(1)              with respect to the Parent or any Subsidiary, its board of directors or any duly authorized committee thereof;

(2)              with respect to a corporation, the board of directors of such corporation or any duly authorized committee thereof; and

(3)              with respect to any other entity, the board of directors or similar body of the general partner or managers of such entity or any duly authorized committee thereof.

“ Change of Control ” means the occurrence of any of the following after the Issue Date:

(1)              the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the property and assets of the Parent and its Subsidiaries, taken as a whole, to any “person” (as that term is used in Section 13(d)(3) of the Exchange Act), other than the Parent or one of the Parent’s wholly-owned Subsidiaries;

(2)              the adoption of a plan relating to the liquidation or dissolution of the Parent or the Issuer;

(3)              the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any “person” (as that term is used in Section 13(d)(3) of the Exchange Act) becomes the beneficial owner, directly or indirectly, of more than 50% of the Parent’s Voting Stock, measured by voting power rather than number of shares;

(4)              the merger or consolidation of the Parent with or into another Person or the merger of another Person with or into the Parent or the merger of any Person with or into a Subsidiary of the Parent, unless the holders of a majority of the aggregate voting power of the Voting Stock of the Parent, immediately prior to such transaction, hold securities of the surviving or transferee Person that represent, immediately after such transaction, at least a majority of the aggregate voting power of the Voting Stock of the surviving or transferee Person;
 

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(5)              the Parent ceases to own, directly or indirectly, 100% of all outstanding equity interests of the Issuer (except as a result of the merger of the Issuer with and into the Parent); or

(6)              for so long as any of the Existing Notes remain outstanding, the first day on which a majority of the members of the Parent’s Board of Directors are not Continuing Directors.

Notwithstanding the foregoing, the Transactions shall not constitute a Change of Control.

Notwithstanding the foregoing, a transaction effected to create a holding company for the Parent will not be deemed to involve a Change of Control if (a) pursuant to such transaction the Parent becomes a wholly-owned Subsidiary of such holding company and (b) the holders of the Voting Stock of such holding company immediately following such transaction are the same as the holders of the Parent’s Voting Stock immediately prior to such transaction.

“ Consolidated Cost Savings ” means, for any period, those synergies, operating expense reductions and cost-savings of the Parent and its Restricted Subsidiaries that are reasonably identifiable, factually supportable and projected by the Parent in good faith to be realized following the Issue Date as a result of restructurings, reorganizations, divestitures, cost savings initiatives, production rationalizations and other similar initiatives (collectively, “ Initiatives ”) (calculated on a pro forma basis as if such synergies, operating expense reductions and cost-savings had been realized on the first day of such period, and net of the amount of actual benefits realized during such period from such Initiatives to the extent already included in Consolidated Net Income for such period); provided that (i) no synergies, operating expense reductions or cost-savings shall be added to Consolidated EBITDA pursuant to clause (e) thereof to the extent duplicative of any expenses or charges otherwise added to (or excluded from) Consolidated EBITDA, whether through a pro forma adjustment or otherwise, for such period and (ii) projected amounts (and not yet realized) (x) may be added (the date on which such amounts are added, the “ Initiative Commencement Date ”) once actions in respect of such Initiative have been taken or are expected to be taken (in the good faith determination of the Parent) within 12 months and (y) may no longer be added back in calculating Consolidated EBITDA pursuant to clause (e) thereof to the extent occurring more than six full fiscal quarters after the Initiative Commencement Date.

“ Consolidated Debt Ratio ” means, as of any date of determination, the ratio of (1) the aggregate amount of Debt of the Parent and its Restricted Subsidiaries then outstanding as of such date of determination to (2) Consolidated EBITDA for the most recent four consecutive fiscal quarters for which internal financial statements of the Parent are available, in each case with pro forma and other adjustments to each of Debt and Consolidated EBITDA to reflect any incurrences or repayments of Debt and any acquisitions or dispositions of businesses or assets since the beginning of such four consecutive fiscal quarter period (which pro forma and other adjustments will be determined in good faith by a  responsible financial or accounting officer of the Parent and shall not be required to be made in accordance with Regulation S-X promulgated by the Commission).

“ Consolidated EBITDA ” means, for any period, Consolidated Net Income for such period (adjusted to exclude all extraordinary or unusual items and any gains or losses on sales of assets outside the ordinary course of business) plus, without duplication and (except with respect to synergies included in Consolidated Cost Savings) to the extent deducted in calculating such Consolidated Net Income for such period, the sum of (a) income tax expense, (b) interest expense, amortization or writeoff of debt discount with respect to Debt, (c) depreciation and amortization expense, (d) amortization of intangibles (including, but not limited to, goodwill) and organization costs, (e) Consolidated Cost Savings; provided that with respect to any period, the aggregate amount added back in the calculation of Consolidated EBITDA for such period pursuant to this clause (e) and clause (f) below shall not exceed 20% of Consolidated EBITDA (in each case calculated prior to giving effect to any add-backs pursuant to this clause (e) and clause (f) below), (f) costs and expenses incurred in connection with the implementation of Initiatives; provided that with respect to any period, the aggregate amount added back in the calculation of Consolidated EBITDA for such period pursuant to this clause (f) and clause (e) above shall not exceed 20% of Consolidated EBITDA (in each case calculated prior to giving effect to any add-backs pursuant to this clause (f) and clause (e) above), (g) the sum (without duplication) of all non-recurring fees, costs and expenses incurred by the Parent and its Restricted Subsidiaries, whether before, on or within six months after the Merger Closing Date, in connection with the Transactions during such period; provided that the aggregate amount added back in the calculation of Consolidated EBITDA pursuant to this clause (g) shall not exceed $100,000,000, (h) all payments triggered in respect of the Parent’s non-qualified deferred compensation and post-retirement benefit plans in connection with the Transactions during such period, (i) any other non-cash charges and (j) adjustments and add-backs of the nature set forth in the Offering Memorandum under the section entitled “Summary—Summary historical and pro forma financial data”, minus, (x) any cash payments made during such period in respect of items described in clause (i) above subsequent to the fiscal quarter in which the relevant non-cash charge was reflected as a charge in the statement of Consolidated Net Income and (y) to the extent included in calculating such Consolidated Net Income for such period, any non-cash income (other than amounts accrued in the ordinary course of business under accrual-based revenue recognition procedures in accordance with GAAP).
 

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“ Consolidated Fixed Charge Coverage Ratio ” means, with respect to any Person, the ratio of Consolidated EBITDA of such Person during the four full fiscal quarters for which financial statements are available (the “ Four Quarter Period ”) ending prior to the date of the transaction giving rise to the need to calculate the Consolidated Fixed Charge Coverage Ratio (the “ Transaction Date ”) to Consolidated Fixed Charges of such Person for the Four Quarter Period. In addition to and without limitation of the foregoing, for purposes of this definition, “Consolidated EBITDA” and “Consolidated Fixed Charges” shall be calculated after giving effect on a pro forma basis for the period of such calculation to:

(i)              the incurrence of any Debt of such Person or any of its Restricted Subsidiaries (and the application of the proceeds thereof) and the repayment of other Debt, other than the incurrence or repayment of Debt in the ordinary course of business for working capital purposes pursuant to working capital facilities, occurring during the Four Quarter Period or at any time subsequent to the last day of the Four Quarter Period and on or prior to the Transaction Date, as if such incurrence or repayment, as the case may be (and the application of the proceeds thereof), occurred on the first day of the Four Quarter Period; and

(ii)              any Asset Sales or Asset Acquisitions (including, without limitation, any Asset Acquisition giving rise to the need to make such calculation as a result of such Person or one of its Restricted Subsidiaries (including any Person who becomes a Restricted Subsidiary as a result of the Asset Acquisition) incurring, assuming or otherwise being liable for Acquired Debt and also including any Consolidated EBITDA attributable to the assets which are the subject of the Asset Acquisition) occurring during the Four Quarter Period or at any time subsequent to the last day of the Four Quarter Period and on or prior to the Transaction Date, as if such Asset Sale or Asset Acquisition (including the incurrence, assumption or liability for any such Acquired Debt) occurred on the first day of the Four Quarter Period.

For purposes of this definition, pro forma calculations shall be made in good faith by a responsible financial or accounting officer of the Parent and shall not be required to be made in accordance with Regulation S-X promulgated under the Securities Act, and such pro forma calculations may also include operating expense reductions for such period resulting from the Asset Sale or Asset Acquisition (as determined in good faith by senior management of the Parent) for which pro forma effect is being given (A) that have been realized or (B) for which steps have been taken or are reasonably expected to be taken within six months of the date of such transaction and are supportable and quantifiable and, in each case, including, but not limited to (a) reduction in personnel expenses, (b) reduction of costs related to administrative functions, (c) reduction of costs related to leased or owned properties and (d) reductions from the consolidation of operations and streamlining of corporate overhead.
 

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Furthermore, in calculating “Consolidated Fixed Charges” for purposes of determining the denominator (but not the numerator) of this “Consolidated Fixed Charge Coverage Ratio”:

(i)              interest on outstanding Debt determined on a fluctuating basis as of the Transaction Date and which will continue to be so determined thereafter shall be deemed to have accrued at a fixed rate per annum equal to the rate of interest on such Debt in effect on the Transaction Date;

(ii)              if interest on any Debt actually incurred on the Transaction Date may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rates, then the interest rate in effect on the Transaction Date will be deemed to have been in effect during the Four Quarter Period; and

(iii)              notwithstanding clause (i) or (ii) above, interest on Debt determined on a fluctuating basis, to the extent such interest is covered by agreements relating to Hedging Obligations, shall be deemed to accrue at the rate per annum resulting after giving effect to the operation of such agreements.

“ Consolidated Net Income ” means, for any period, the consolidated net income (or loss) of the Parent and its Restricted Subsidiaries, determined on a consolidated basis in accordance with GAAP; provided that there shall be excluded (a) the income (or deficit) of any Person accrued prior to the date it becomes a Restricted Subsidiary of the Parent or is merged into or consolidated with the Parent or any of its Restricted Subsidiaries, (b) the income (or deficit) of any Person (other than a Restricted Subsidiary of the Parent) in which the Parent or any of its Restricted Subsidiaries has an ownership interest, except to the extent that any such income is actually received by the Parent or such Subsidiary in the form of dividends or similar distributions and (c) solely for the purposes of Section 4.05, the undistributed earnings of any Restricted Subsidiary of the Parent to the extent that the declaration or payment of dividends or similar distributions by such Restricted Subsidiary is not at the time permitted by the terms of any contractual obligation or any law applicable to such Restricted Subsidiary.

“ Consolidated Net Tangible Assets ” means the total amount of the Parent’s consolidated assets after deducting therefrom (i) all current liabilities, excluding any thereof which are by their terms extendible or renewable at the option of the obligor thereon to a time more than 12 months after the time as of which the amount thereof is being computed and (ii) unamortized Debt discount and expense, goodwill, trademarks, brand names, patents and other intangible assets, all as shown on the Parent’s latest audited consolidated financial statements at the time of the determination.

“ Continuing Director ” means, as of any date of determination, any member of the Parent’s Board of Directors who (i) was a member of such Board of Directors on the first date that the Notes were issued or (ii) was nominated for election or elected to the Parent’s Board of Directors with the approval (for purposes of the Notes) of a majority of the Continuing Directors who were members of the Parent’s Board of Directors at the time of such nomination or election.
 

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“ Credit Agreement ” means the credit agreements, dated as of June 23, 2015 (as amended, supplemented or otherwise modified from time to time), among the Issuer or the Parent, as applicable, the other borrowers party thereto, Wells Fargo Bank, National Association, as administrative agent, and the other agents and lenders named therein, providing for (i) a revolving credit facility, which, upon the consummation of the Merger on the Merger Closing Date, shall provide for borrowings by the Parent and Olin Canada ULC and will be guaranteed by the Issuer and (ii) a term loan facility, which shall provide for borrowings by the Issuer and, upon the consummation of the Merger on the Merger Closing Date, will be guaranteed by the Parent, together with all related notes, letters of credit, guarantees, and any other related agreements and instruments executed and delivered in connection therewith, in each case as amended, modified, supplemented, restated, refinanced, refunded or replaced in whole or in part from time to time including by or pursuant to any agreement or instrument that exchanges, extends, refinances, renews, replaces, substitutes or otherwise restructures the maturity of any indebtedness thereunder, or increases the amount of available borrowings thereunder, or adds Subsidiaries of the Parent as additional borrowers or guarantors thereunder, in each case with respect to such agreement or any successor or replacement agreement and whether by the same or any other agent, lender, group of lenders, purchasers, institutional investors or debt holders.

“ Debt ” means any notes, bonds, debentures, loans or other similar evidences of indebtedness for money borrowed, issued, assumed or guaranteed by the Parent or any Restricted Subsidiary.

“ Debt Facility ” means one or more debt facilities (including, without limitation, the  Credit Agreement and the Sumitomo Credit Agreement) or commercial paper facilities with banks or other institutional lenders providing for revolving credit loans, term loans, receivables financing (including through the sale of receivables to such lenders or to special purpose entities formed to borrow from such lenders against such receivables) or letters of credit or issuances of debt securities evidenced by notes, debentures, bonds or similar instruments, in each case, as amended, restated, modified, renewed, refunded, replaced or refinanced (including by means of sales of debt securities) in whole or in part from time to time (and whether or not with the original administrative agent, lenders or trustee or another administrative agent or agents, other lenders or trustee and whether provided under the original Credit Agreement and the original Sumitomo Credit Agreement or any other credit or other agreement or indenture).

“ Designated Non-cash Consideration ” means the fair market value as determined in good faith by the Parent of non-cash consideration received by the Parent or a Restricted Subsidiary in connection with an Asset Sale that is so designated as Designated Non-cash Consideration pursuant to an Officers’ Certificate, setting forth the basis of such valuation less the amount of cash or Eligible Cash Equivalents received in connection with a subsequent sale of or collection on such Designated Non-cash Consideration.

“ Eligible Cash Equivalents ” means any of the following Investments: (i) securities issued or directly and fully guaranteed or insured by the United States or any agency or instrumentality thereof ( provided that the full faith and credit of the United States is pledged in support thereof) maturing not more than one year after the date of acquisition; (ii) time deposits in and certificates of deposit of any Eligible Bank, provided that such Investments have a maturity date not more than two years after date of acquisition and that the Average Life of all such Investments is one year or less from the respective dates of acquisition; (iii) repurchase obligations with a term of not more than 180 days for underlying securities of the types described in clause (i) above entered into with any Eligible Bank; (iv) direct obligations issued by any state of the United States or any political subdivision or public instrumentality thereof, provided that such Investments mature, or are subject to tender at the option of the holder thereof, within 365 days after the date of acquisition and, at the time of acquisition, have a rating of at least A from S&P or A-2 from Moody’s (or an equivalent rating by any other nationally recognized rating agency); (v) commercial paper of any Person other than an affiliate of the Parent and other than structured investment vehicles, provided that such Investments have one of the two highest ratings obtainable from either S&P or Moody’s and mature within 180 days after the date of acquisition; (vi) overnight and demand deposits in and bankers’ acceptances of any Eligible Bank and demand deposits in any bank or trust company to the extent insured by the Federal Deposit Insurance Corporation against the Bank Insurance Fund; (vii) money market funds 95% of the assets of which comprise Investments of the types described in clauses (i) through (vi); and (viii) instruments equivalent to those referred to in clauses (i) through (vi) above or funds equivalent to those referred to in clause (vii) above denominated in U.S. dollars, Euros or any other foreign currency comparable in credit quality and tender to those referred to in such clauses and customarily used by corporations for cash management purposes in jurisdictions outside the United States to the extent reasonably required in connection with any business conducted by any Restricted Subsidiary organized in such jurisdiction, all as determined in good faith by the Parent.
 

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“ Excluded Contributions ” means the net cash proceeds received by the Parent after the Issue Date from:

(1) contributions to its common equity capital, and

(2) the sale (other than to a Restricted Subsidiary of the Parent or to any Parent management equity plan or stock option plan or any other management or employee benefit plan or agreement) of Capital Stock (other than Redeemable Capital Interests and preferred stock) of the Parent;

provided, however that such net cash proceeds will be designated by the Parent as “Excluded Contributions” in an Officers’ Certificate delivered to the Trustee and the net cash proceeds so designated will be excluded from the calculation set forth in Section 4.05(a)(iii).

“ Existing Notes ” means the Parent’s (i) 5.50% Senior Notes due 2022 and 6.75% Senior Notes due 2016, (ii) SunBelt Notes due 2012-2017, issued on December 22, 1997 and (iii) Variable-rate 2024 Bonds issued on October 14, 2010, Recovery Zone Bonds issued on December 9, 2010 and Recovery Zone Bonds due 2035 issued on December 27, 2010.

“ Guarantee ” means, with respect to the Notes, the Guarantee of the Parent or a Subsidiary Guarantor pursuant to the terms of this Indenture.

“ Investment ” by any Person means any direct or indirect loan, advance, guarantee for the benefit of (or other extension of credit) or capital contribution to (by means of any transfer of cash or other property or assets to another Person or any other payments for property or services for the account or use of another Person) another Person, including, without limitation, the following: (i) the purchase or acquisition of any Capital Stock or other evidence of beneficial ownership in another Person; (ii) the purchase, acquisition or guarantee of the Debt of another Person; and (iii) the purchase or acquisition of the business or assets of another Person substantially as an entirety but shall exclude: (a) accounts receivable and other extensions of trade credit in accordance with the Parent’s customary practices; (b) the acquisition of property and assets from suppliers and other vendors in the normal course of business; and (c) prepaid expenses and workers’ compensation, utility, lease and similar deposits, in the normal course of business.

For purposes of Section 4.05 and the definition of “Unrestricted Subsidiary”:
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(1)              “Investment” will include the portion (proportionate to the Parent’s equity interest in the Restricted Subsidiary to be designated as an Unrestricted Subsidiary) of the fair market value as determined by the Parent in good faith of the net assets of such Restricted Subsidiary of the Parent at the time that such Restricted Subsidiary is designated an Unrestricted Subsidiary; provided , however , that upon a redesignation of such Subsidiary as a Restricted Subsidiary, the Parent will be deemed to continue to have a permanent “Investment” in an Unrestricted Subsidiary in an amount (if positive) equal to (a) the Parent’s “Investment” in such Subsidiary at the time of such redesignation less (b) the portion (proportionate to the Parent’s equity interest in such Subsidiary) of the fair market value as determined by the Parent in good faith of the net assets of such Subsidiary at the time that such Subsidiary is so re-designated as a Restricted Subsidiary; and

(2)              any property transferred to or from an Unrestricted Subsidiary will be valued at its fair market value at the time of such transfer, as determined by the Parent in good faith.

“ Moody’s ” means Moody’s Investors Services, Inc. and any successor to its rating agency business.

“ Net Cash Proceeds ” means, with respect to Asset Sales of any Person, cash and Eligible Cash Equivalents received, net of: (i) all reasonable out-of-pocket costs and expenses of such Person incurred in connection with such a sale, including, without limitation, all legal, accounting, title and recording tax expenses, commissions and other fees and expenses incurred and all federal, state, foreign and local taxes arising in connection with such an Asset Sale that are paid or required to be accrued as a liability under GAAP by such Person; (ii) all payments made by such Person on any Debt that is secured by such properties or other assets in accordance with the terms of any Lien upon or with respect to such properties or other assets or that must, by the terms of such Lien or such Debt, or in order to obtain a necessary consent to such transaction or by applicable law, be repaid to any other Person (other than the Parent or a Restricted Subsidiary thereof) in connection with such Asset Sale; and (iii) all contractually required distributions and other payments made to minority interest holders in Restricted Subsidiaries of such Person as a result of such transaction; provided, however , that: (a) in the event that any consideration for an Asset Sale (which would otherwise constitute Net Cash Proceeds) is required by (I) contract to be held in escrow pending determination of whether a purchase price adjustment will be made or (II) GAAP to be reserved against other liabilities in connection with such Asset Sale, such consideration (or any portion thereof) shall become Net Cash Proceeds only at such time as it is released to such Person from escrow or otherwise; and (b) any non-cash consideration received in connection with any transaction, which is subsequently converted to cash, shall become Net Cash Proceeds only at such time as it is so converted.

“ Non-Guarantor Subsidiary ” means any Restricted Subsidiary that is not a Subsidiary Guarantor or the Issuer.

“ 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 the Parent or the Issuer.

“ Permitted Asset Swap ” means the concurrent purchase and sale or exchange of properties or assets (other than securities) that are used or useful in a Permitted Business or a combination of such assets and cash or Eligible Cash Equivalents between the Parent or any of its Restricted Subsidiaries and another Person; provided, however that any cash and Eligible Cash Equivalents must be applied in accordance with Section 4.11.
 
“ Permitted Business ” means any business similar in nature to any business conducted by the Parent and the Restricted Subsidiaries on the Issue Date and any business reasonably ancillary, incidental, complementary or related to, or a reasonable extension, development or expansion of, the business conducted by the Parent and the Restricted Subsidiaries on the Issue Date, in each case, as determined in good faith by the Parent.
 

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“ Permitted Debt ” means

(1) Debt incurred by the Issuer, the Parent or any Subsidiary Guarantor pursuant to any Debt Facilities in an aggregate principal amount at any one time outstanding not to exceed (x) $2,880.0 million minus (y) any amount used to permanently repay such obligations (or permanently reduce commitments with respect thereto) pursuant to Section 4.11;

(2) Debt under (a) the Notes issued on the Issue Date and any Exchange Notes issued in exchange for such Notes and (b) the 2025 Notes issued on the Issue Date and any exchange notes issued in exchange for such notes;

(3) Guarantees of the Notes and any Exchange Notes issued in exchange for such Notes and guarantees of the 2025 Notes and any exchange notes issued in exchange for such notes;

(4) Debt of the Parent or any Restricted Subsidiary outstanding on the Issue Date (other than Debt incurred pursuant to clauses (1), (2) or (3) above) (including the Existing Notes);

(5) guarantees incurred by the Parent of Debt of a Restricted Subsidiary otherwise permitted to be incurred under this Indenture;

(6) guarantees by any Restricted Subsidiary of Debt of the Parent or any other Restricted Subsidiary, including guarantees by any Restricted Subsidiary of Debt under the Credit Agreement and the Sumitomo Credit Agreement; provided, however, that (a) such Debt is permitted to be incurred under this Indenture and (b) if the Debt being guaranteed is subordinated in right of payment to the Notes, such guarantees are subordinated to the Notes to the same extent, if any, as the Debt being guaranteed;

(7) Debt incurred in respect of workers’ compensation claims and self-insurance obligations, and, for the avoidance of doubt, indemnity, bid, performance, warranty, release, appeal, surety and similar bonds, letters of credit for operating purposes and completion guarantees provided or incurred (including guarantees thereof) by the Parent or a Restricted Subsidiary in the ordinary course of business;

(8) Debt under Swap Contracts and Hedging Obligations incurred in the ordinary course of business and not for speculative purposes;

(9) Debt owed by the Parent to any Restricted Subsidiary, or by any Restricted Subsidiary to the Parent or to any other Restricted Subsidiary, provided that if for any reason such Debt ceases to be held by the Parent or a Restricted Subsidiary, as applicable, such Debt shall cease to be Permitted Debt under this clause (9) and shall be deemed incurred as Debt of the Parent for purposes of this Indenture;

(10) Debt of the Parent or a Subsidiary Guarantor pursuant to capital lease obligations, synthetic lease obligations and Purchase Money Debt and any Refinancing Debt that Refinances any Debt incurred pursuant to this clause (10); provided , however that the aggregate principal amount of all Debt incurred under this clause (10) and outstanding at any time may not exceed $100.0 million in the aggregate;
 

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(11) Debt arising from agreements of the Parent or a Restricted Subsidiary providing for indemnification, contribution, earnout, adjustment of purchase price or similar obligations, in each case, incurred or assumed in connection with the acquisition or disposition of any business, assets or Capital Stock of a Restricted Subsidiary otherwise permitted under this Indenture;

(12) the issuance by any of the Parent’s Restricted Subsidiaries to the Parent or to any of its Restricted Subsidiaries of shares of Redeemable Capital Interests or preferred stock; provided , however , that:

(a) any subsequent issuance or transfer of Capital Stock that results in any such Redeemable Capital Interests being held by a Person other than the Parent or a Restricted Subsidiary; and

(b) any sale or other transfer of any such Redeemable Capital Interests to a Person that is not either the Parent or a Restricted Subsidiary;

shall be deemed, in each case, to constitute an issuance of such Redeemable Capital Interests by such Restricted Subsidiary that was not permitted by this clause (12);

(13) Debt 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 Debt is extinguished within five business days of incurrence;

(14) Debt of the Parent or a Restricted Subsidiary not otherwise permitted pursuant to this definition, in an aggregate principal amount not to exceed $150.0 million at any time outstanding;

(15) Purchase Money Notes incurred by any Receivable Subsidiary that is a Restricted Subsidiary in a Qualified Receivables Transaction and Non-Recourse Receivable Subsidiary Indebtedness;  p rovided , however that the aggregate amounts incurred and outstanding under all Qualified Receivables Transactions shall not exceed $250.0 million;

(16) Debt of Foreign Restricted Subsidiaries in an aggregate principal amount not to exceed $50.0 million at any one time outstanding;

(17) (x) Debt of the Parent, the Issuer or any Subsidiary Guarantor incurred or issued to finance an acquisition or (y) Acquired Debt; provided , however , that after giving pro forma effect to such acquisition, merger or consolidation, and the incurrence of such Debt (including pro forma application of the proceeds thereof), either:

(a) the Parent would be permitted to incur at least $1.00 of additional Coverage Debt pursuant to Section 4.06(a);

(b) the Consolidated Fixed Charge Coverage Ratio of the Parent and its Restricted Subsidiaries would not be lower than such ratio immediately prior to such acquisition, merger or consolidation; or

(c) such Debt constitutes Acquired Debt (other than Debt incurred in contemplation of the transaction or series of transactions pursuant to which such Person became a Restricted Subsidiary or was otherwise acquired by the Parent or a Restricted Subsidiary); provided that the only obligors with respect to such Debt shall be those Persons who were obligors of such Debt prior to such acquisition, merger or consolidation; and
 
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(18) Refinancing Debt that Refinances Coverage Debt or Debt incurred pursuant to clauses (2), (4), (17) or this clause (18) of this definition of “Permitted Debt.”

“ Permitted Investments ” means:

(1)              Investments in existence on the Issue Date;

(2)              Investments required pursuant to any agreement or obligation of the Parent or a Restricted Subsidiary, in effect on the Issue Date, to make such Investments;

(3)              Investments in cash and Eligible Cash Equivalents;

(4)              Investments in property and other assets, owned or used by the Parent or any Restricted Subsidiary in the normal course of business;

(5)              Investments by the Parent or any of its Restricted Subsidiaries in the Parent or any Restricted Subsidiary;

(6)              Investments by the Parent or any Restricted Subsidiary in a Person, if as a result of such Investment (A) such Person becomes a Restricted Subsidiary or (B) such Person is merged, consolidated or amalgamated with or into, or transfers or conveys substantially all of its assets to, or is liquidated or wound-up into, the Parent or a Restricted Subsidiary;

(7)              Swap Contracts and Hedging Obligations;

(8)              receivables owing to the Parent or any of its Restricted Subsidiaries and advances to suppliers, in each case if created, acquired or made in the ordinary course of business and payable or dischargeable in accordance with customary trade terms;

(9)              Investments received in settlement of obligations owed to the Parent or any Restricted Subsidiary and as a result of bankruptcy or insolvency proceedings or upon the foreclosure or enforcement of any Lien in favor of the Parent or any Restricted Subsidiary;

(10)              Investments by the Parent or any Restricted Subsidiary not otherwise permitted under this definition, in an aggregate amount not to exceed the greater of (i) $250.0 million and (ii) 5% of Consolidated Net Tangible Assets at any one time outstanding;

(11)              loans and advances to officers, directors and employees of the Parent and
Restricted Subsidiaries in an aggregate amount not to exceed $10.0 million in the aggregate at any one time outstanding, for travel, entertainment, relocation and analogous ordinary business purposes;

(12)              Investments the payment for which consists solely of Capital Stock of the Parent;

(13)              any Investment in any Person to the extent such Investment represents the non-cash portion of the consideration received in connection with an Asset Sale consummated in compliance with Section 4.11 or any other disposition of property not constituting an Asset Sale;
 

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(14)              payroll, travel 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 and consistent with past practice;

(15)              guarantees by the Parent or any Restricted Subsidiary of Debt of the Parentor a Restricted Subsidiary (other than a Receivables Subsidiary) of Debt otherwise permitted by Section 4.06;

(16)              any Investment by the Parent or any Restricted Subsidiary in a Receivable Subsidiary or any Investment by a Receivable Subsidiary in any other Person in connection with a Qualified Receivables Transaction, so long as any Investment in a Receivable Subsidiary is in the form of a Purchase Money Note or an Investment in Capital Stock; and

(17)              other Investments in any Person that is a joint venture engaged in a Permitted Business (other than an Investment in an Unrestricted Subsidiary) having an aggregate fair market value as determined by the Parent in good faith (measured on the date each such Investment was made and without giving effect to subsequent changes in value), when taken together with all other Investments made pursuant to this clause (q) since the Issue Date and existing at the time of the Investment, which is the subject of the determination, was made, not to exceed the greater of (i) $125 million and (ii) 2.5% of Consolidated Net Tangible Assets.

“ Principal Property ” means any of the Parent’s properties or plants or the properties or plants of any Restricted Subsidiary primarily used for the manufacture of products and located within the United States or its territories or possessions, except any such property or plant which the Board of Directors of the Parent by resolution declares is not of material importance to the total business conducted by the Parent and its Subsidiaries as an entirety.

“ Purchase Money Note ” means a promissory note of a Receivable Subsidiary issued to the Parent or any Restricted Subsidiary, to pay all or a portion of the purchase price of receivables and assets related thereto described in the definition of “Qualified Receivables Transaction” that are purchased in connection with a Qualified Receivables Transaction. The repayment of a Purchase Money Note may be subordinated to the repayment of other liabilities of the Receivable Subsidiary on terms determined in good faith by the Parent to be substantially consistent with market practice in connection with Qualified Receivables Transactions.

“ Qualified Receivables Transaction ” means any transaction or series of transactions entered into by the Parent or any of its Restricted Subsidiaries pursuant to which the Parent or such Restricted Subsidiary transfers to (1) a Receivable Subsidiary (in the case of a transfer by the Parent or any of its Restricted Subsidiaries) or (2) any other Person (in the case of a transfer by a Receivable Subsidiary), or grants a security interest in, any accounts receivable (whether now existing or arising in the future) of the Parent or any of its Restricted Subsidiaries, and any assets related thereto, including, without limitation, all collateral securing such accounts receivable, all contracts and all guarantees or other obligations in respect of such accounts receivable, proceeds of such accounts receivable and other assets which are customarily transferred or in respect of which security interests are customarily granted in connection with an accounts receivable financing transaction; provided such transaction is on market terms as determined in good faith by the Parent at the time the Parent or such Restricted Subsidiary enters into such transaction.
 

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“ Receivable Subsidiary ” means a Subsidiary of the Parent (other than the Issuer):

(1)              that is formed solely for the purpose of, and that engages in no activities other than activities in connection with, financing accounts receivable of the Parent and/or its Restricted Subsidiaries, including providing letters of credit on behalf of or for the benefit of the Parent and/or its Restricted Subsidiaries;

(2)              that is designated by the Board of Directors of the Parent as a Receivable Subsidiary pursuant to an Officers’ Certificate that is delivered to the Trustee;

(3)              that is either (a) a Restricted Subsidiary or (b) an Unrestricted Subsidiary designated in accordance with the definition of “Unrestricted Subsidiary”;

(4)              no portion of the Debt or any other obligation (contingent or otherwise) of which (a) is at any time guaranteed by the Parent or any Restricted Subsidiary (excluding guarantees of obligations (other than any guarantee of Debt) pursuant to Standard Securitization Undertakings), (b) is at any time recourse to or obligates the Parent or any Restricted Subsidiary in any way, other than pursuant to Standard Securitization Undertakings or (c) subjects any asset of the Parent or any other Restricted Subsidiary of the Parent, directly or indirectly, contingently or otherwise, to the satisfaction thereof, other than pursuant to Standard Securitization Undertakings (such Debt, “Non-Recourse Receivable Subsidiary Indebtedness”);

(5)              with which neither the Parent nor any Restricted Subsidiary has any material contract, agreement, arrangement or understanding other than (a) contracts, agreements, arrangements and understandings entered into in connection with a Qualified Receivables Transaction, (b) fees payable in the ordinary course of business in connection with servicing accounts receivable in connection with such a Qualified Receivables Transaction as determined in good faith by the Board of Directors of the Parent and (c) any Purchase Money Note issued by such Receivable Subsidiary to the Parent or a Restricted Subsidiary or any letters of credit provided by such Receivable Subsidiary on behalf of or for the benefit of the Parent or any Restricted Subsidiary; and

(6)              with respect to which neither the Parent nor any other Restricted Subsidiary has any obligation (a) to subscribe for additional shares of Capital Stock therein or make any additional capital contribution or similar payment or transfer thereto except in connection with a Qualified Receivables Transaction or (b) to maintain or preserve the solvency or any balance sheet term, financial condition, level of income or results of operations thereof.

“ Redeemable Capital Interests ” in any Person means any equity security of such Person  that by its terms (or by terms of any security into which it is convertible or for which it is exchangeable), or otherwise (including the passage of time or the happening of an event), is required to be redeemed, is redeemable at the option of the holder thereof in whole or in part (including by operation of a sinking fund), or is convertible or exchangeable for Debt of such Person at the option of the holder thereof, in whole or in part, at any time prior to the Stated Maturity of the Notes; provided that only the portion of such equity security which is required to be redeemed, is so convertible or exchangeable or is so redeemable at the option of the holder thereof before such date will be deemed to be Redeemable Capital Interests. Notwithstanding the preceding sentence, any equity security that would constitute Redeemable Capital Interests solely because the holders of the equity security have the right to require the Parent to repurchase such equity security upon the occurrence of a Change of Control or an Asset Sale will not constitute Redeemable Capital Interests if the terms of such equity security provide that the Parent may not repurchase or redeem any such equity security pursuant to such provisions unless such repurchase or redemption complies with Section 4.05. The amount of Redeemable Capital Interests deemed to be outstanding at any time for purposes of this Indenture will be the maximum amount that the Parent and its Restricted Subsidiaries may become obligated to pay upon the maturity of, or pursuant to any mandatory redemption provisions of, such Redeemable Capital Interests or portion thereof, exclusive of accrued dividends.
 

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“ Refinancing Debt ” means Debt that Refinances any Debt incurred by the Parent or any Restricted Subsidiary pursuant to the terms of this Indenture, whether involving the same or any other lender or creditor or group of lenders or creditors, but only to the extent that

(1)              if the Debt being refinanced is subordinated in right of payment to the Notes, the Refinancing Debt is subordinated to the Notes to at least the same extent as the Debt being Refinanced if such Debt was subordinated to the Notes,

(2)              the Refinancing Debt is scheduled to mature either (a) no earlier than the Debt being Refinanced or (b) at least 91 days after the maturity date of the Notes,

(3)              the Refinancing Debt has an Average Life at the time such Refinancing Debt is incurred that is equal to or greater than the Average Life of the Debt being Refinanced,

(4)              such Refinancing Debt is in 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 fees and expenses, including any premium and defeasance costs) with respect to the Debt being Refinanced, and

(5)              Refinancing Debt shall not include Debt of a Non-Guarantor Subsidiary that refinances Debt of the Parent, the Issuer or a Subsidiary Guarantor.

“ Restricted Payment ” is defined to mean any of the following:

(1) any dividend or other distribution declared and paid on the Capital Stock in the Parent or on the Capital Stock in any Restricted Subsidiary of the Parent that are held by, or declared and paid to, any Person other than the Parent or a Restricted Subsidiary of the Parent (other than (i) dividends, distributions or payments made solely in Qualified Capital Interests in the Parent and (ii) dividends or distributions payable to the Parent or a Restricted Subsidiary of the Parent or to other holders of Capital Stock of a Restricted Subsidiary on a pro rata basis);

(2) any payment (including, without limitation, in connection with a merger, consolidation or amalgamation) made by the Parent or any of its Restricted Subsidiaries to purchase, redeem, acquire or retire any Capital Stock in the Parent (including the conversion into, or exchange for, Debt, of any Capital Stock) other than any such Capital Stock owned by the Parent or any Restricted Subsidiary (other than a payment made solely in Qualified Capital Interests in the Parent);

(3) any payment made by the Parent or any of its Restricted Subsidiaries (other than a payment made solely in Qualified Capital Interests in the Parent) to redeem, repurchase, defease (including an in substance or legal defeasance) or otherwise acquire or retire for value (including pursuant to mandatory repurchase covenants), prior to any scheduled maturity, scheduled sinking fund or mandatory redemption payment, Debt of the Parent or any Subsidiary Guarantor that is subordinate in right of payment to the Notes or Guarantees (excluding any Debt owed to the Parent or any Restricted Subsidiary); except payments of principal and interest in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, within one year of the due date thereof;
 

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(4) any Investment by the Parent or a Restricted Subsidiary in any Person, other than a Permitted Investment; and

(5) any designation of a Restricted Subsidiary as an Unrestricted Subsidiary.

“ Restricted Subsidiary ” means any Subsidiary of the Parent (including the Issuer) other than an Unrestricted Subsidiary.

“ Significant Subsidiary ” means any Restricted Subsidiary of the Parent that constitutes a “significant subsidiary” within the meaning set forth in Rule 1-02 of Regulation S-X promulgated by the Commission.

“ Standard Securitization Undertakings ” means representations, warranties, covenants and indemnities entered into by the Parent or any Restricted Subsidiary which are reasonably customary in an accounts receivable securitization transaction as determined in good faith by the Parent, including guarantees by the Parent or any Restricted Subsidiary of any of the foregoing obligations of the Parent or a Restricted Subsidiary.

“ Subsidiary ” of any Person means any corporation, association or other business entity of which more than 50%, by number of votes, of the Voting Stock is at the time directly or indirectly owned by such Person.  Unless otherwise specified herein, each reference to a Subsidiary will refer to a Subsidiary of the Parent, including the Issuer.

“ Subsidiary Guarantor ” means each Restricted Subsidiary of the Parent that executes a supplemental indenture, including in the form set forth in Exhibit C hereto providing its Guarantee pursuant to the terms of this Indenture after the Issue Date.

“ Sumitomo Credit Agreement ” means the credit agreement, dated as of August 25, 2015 (as amended, supplemented or otherwise modified from time to time), among the Issuer, the Parent and the agents and lenders named therein, providing for a term loan facility, which shall provide for borrowings by the Parent, together with all related notes, letters of credit, guarantees, and any other related agreements and instruments executed and delivered in connection therewith, in each case as amended, modified, supplemented, restated, refinanced, refunded or replaced in whole or in part from time to time including by or pursuant to any agreement or instrument that exchanges, extends, refinances, renews, replaces, substitutes or otherwise restructures the maturity of any indebtedness thereunder, or increases the amount of available borrowings thereunder, or adds Subsidiaries of the Parent as additional borrowers or guarantors thereunder, in each case with respect to such agreement or any successor or replacement agreement and whether by the same or any other agent, lender, group of lenders, purchasers, institutional investors or debt holders.

“ Unrestricted Subsidiary ” means:

(1)              any direct or indirect Subsidiary of the Parent (other than the Issuer) which at the time of determination is an Unrestricted Subsidiary (as designated by the Board of Directors of the Parent, as provided below) and

(2)              any Subsidiary of an Unrestricted Subsidiary.
 

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The Board of Directors of the Parent may designate any direct or indirect Subsidiary of  the Parent (including any existing Subsidiary and any newly-acquired or newly-formed direct or indirect Subsidiary) (other than the Issuer) to be an Unrestricted Subsidiary unless such Subsidiary or any of its Subsidiaries owns any Capital Stock or Debt of, or owns or holds any Lien on, any property of, the Parent or any  Subsidiary of the Parent (other than any Subsidiary of the Subsidiary to be so designated); provided that

(a)              any Unrestricted Subsidiary must be an entity of which the Capital Stock entitled to cast at least a majority of the votes that may be cast by all Capital Stock having ordinary voting power for the election of directors or other governing body are owned, directly or indirectly, by the Parent,

(b)              such designation complies with Section 4.05 and

(c)              each of

(1)              the Subsidiary to be so designated and

(2)              its Subsidiaries

has not at the time of designation, and does not thereafter, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable with respect to any Debt pursuant to which the lender has recourse to any of the assets of the Parent or any Restricted Subsidiary.

The Board of Directors of the Parent may designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that immediately after giving effect to such designation no Default or Event of Default shall have occurred and be continuing and either:

(1)              the Parent could incur at least $1.00 of additional Debt pursuant to the Consolidated Fixed Charge Coverage Ratio test described under Section 4.06 or

(2)              the Consolidated Fixed Charge Coverage Ratio for the Parent and the Restricted Subsidiaries on a consolidated basis would be greater than or equal to such ratio for the Parent and the Restricted Subsidiaries on a consolidated basis immediately prior to such designation, in each case on a pro forma basis taking into account such designation.

Any such designation by the Board of Directors of the Parent shall be notified by the Issuer to the Trustee by promptly filing with the Trustee a copy of a resolution of the board of directors of the Issuer giving effect to such designation and an Officers’ Certificate certifying that such designation complied with the foregoing provisions.

1.02.              Section 1.02 “Other Definitions” is hereby amended by adding to the table in its appropriate alphabetical order the term “Successor Guarantor,” which is defined in Section 5.01(c).

1.03.              Section 1.04 “Incorporation by Reference of Trust Indenture Act,” Section 1.05 “Acts of Holders,” Section 2.01 “Form and Dating; Terms,” Section 4.02 “Maintenance of Office or Agency,” Section 7.07 “Compensation and Indemnity,” Section 9.06 “Trustee to Sign Amendments, etc.,” Section 10.02 “Application of Trust Money” and Section 2.3 “Definitive Notes” of Appendix A and Section 9 “Defaults and Remedies” of the Notes are hereby amended by inserting “, the Parent” before each reference to “and the Subsidiary Guarantors”, “or the Subsidiary Guarantors”, “or any Subsidiary Guarantor”, “the Subsidiary Guarantors”, “each Subsidiary Guarantor” and “and any Subsidiary Guarantor” therein.
 

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1.04.              The following sections in Article 4 “Covenants” are hereby amended and restated in their entirety as follows:

ARTICLE 4

COVENANTS

Section 4.03                   Provision of Financial Information .

Whether or not required by the Commission, so long as any Notes are outstanding, the Parent will furnish to the Holders, or file electronically with the Commission through the Commission’s Electronic Data Gathering, Analysis and Retrieval System (or any successor system), within the time periods specified in the Commission’s rules and regulations:

(1) all quarterly and annual financial information that would be required to be contained in a filing by the Parent with the Commission on Forms 10-Q and 10-K if the Parent were required to file such Forms, including a “Management’s discussion and analysis of financial condition and results of operations” and, with respect to the annual information only, a report on the annual financial statements by the Parent’s certified independent accountants; and

(2) all current reports that would be required to be filed by the Parent with the Commission on Form 8-K if the Parent were required to file such reports.

In addition, whether or not required by the Commission, the Parent will file a copy of all of the information and reports referred to in clauses (1) and (2) above with the Commission for public availability within the time periods specified in the Commission’s rules and regulations (unless the Commission will not accept such a filing) and make such information available to prospective investors. In addition, the Parent has agreed that, for so long as any Notes remain outstanding, it will furnish to the Holders of such Notes and to prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.

Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates). The Trustee shall have no responsibility or liability for the filing, content or timeliness of any such report, information or document other than the report of the Trustee specifically required hereunder.

Section 4.04                   Compliance Certificate .

(a)              The Issuer will deliver to the Trustee, within 120 days after the end of each fiscal year ending after the Issue Date, a certificate from the principal executive officer, principal financial officer or principal accounting officer stating that a review of the activities of the Parent and its Restricted Subsidiaries during the preceding fiscal year has been made under the supervision of the signing Officer with a view to determining whether the Issuer, the Parent and each Subsidiary Guarantor have kept, observed, performed and fulfilled their obligations under this Indenture, and further stating, as to such Officer signing such certificate, that to the best of his or her knowledge, the Issuer, the Parent and each Subsidiary Guarantor have kept, observed, performed and fulfilled each and every condition and covenant contained in this Indenture and is not in default in the performance or observance of any of the terms, provisions, covenants and conditions of this Indenture (or, if a Default shall have occurred, describing all such Defaults of which he or she may have knowledge and what action the Issuer, the Parent and each Subsidiary Guarantor are taking or propose to take with respect thereto).
 

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(b)              When any Default has occurred and is continuing under this Indenture, the Issuer will promptly send to the Trustee an Officers’ Certificate specifying such event, its status and what action the Issuer is taking or proposes to take with respect thereof.

Section 4.05                   Limitation on Restricted Payments .

(a)              The Parent will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, make any Restricted Payment unless, at the time of and after giving effect to the proposed Restricted Payment:

(i)              no Default shall have occurred and be continuing or will occur as a consequence thereof;

(ii)              after giving effect to such Restricted Payment on a pro forma basis, the Parent would be permitted to incur at least $1.00 of Coverage Debt under Section 4.06(a); and

(iii)              after giving effect to such Restricted Payment on a pro forma basis, the aggregate amount of all Restricted Payments made after the Issue Date (excluding (x) Restricted Payments permitted by clauses (2) through (8) of Section 4.05(b) and (y) Restricted Payments permitted by clause (9) of Section 4.05(b) to the extent that the amount available for Restricted Payments under this clause (iii) would be reduced to less than zero as a result of payments made under such clause (9)), shall not exceed the sum (without duplication) of

(A)              50% of the Consolidated Net Income (or, if Consolidated Net Income shall be a deficit, minus 100% of such deficit) of the Parent accrued on a cumulative basis during the period (taken as one accounting period) from the beginning of the fiscal quarter during which the Issue Date occurs and ending on the last day of the fiscal quarter immediately preceding the date of such proposed Restricted Payment, plus

(B)              100% of the aggregate net proceeds (including the fair market value of property other than cash as determined by the Parent in good faith) received by the Parent subsequent to the initial issuance of the Notes either (i) as a contribution to its common equity capital or (ii) from the issuance and sale (other than to a Subsidiary) of its Qualified Capital Interests, including Qualified Capital Interests issued upon the conversion of Debt, Redeemable Capital Interests or preferred stock of the Parent, and from the exercise of options, warrants or other rights to purchase such Qualified Capital Interests (other than, in each case, Capital Stock or Debt sold to a Subsidiary of the Parent and other than Excluded Contributions), plus

(C)              to the extent that any Investment (other than Permitted Investments or Investments in Unrestricted Subsidiaries) that was made on or after the Issue Date is sold for cash or otherwise disposed of, liquidated, redeemed, repurchased or repaid for cash or other assets, or to the extent that the Parent otherwise realizes any proceeds on the sale of such Investment or proceeds representing the return of capital on such Investment, the lesser of (i) the initial amount of such Investment, or (ii) to the extent not otherwise included in the calculation of Consolidated Net Income of the Parent for such period, the net cash return of capital or net fair market value of return of capital as determined by the Parent in good faith with respect to such Investment, less the cost of any such disposition or liquidation, plus
 

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(D)              to the extent that any Unrestricted Subsidiary of the Parent designated as such on or after the Issue Date is redesignated as a Restricted Subsidiary, the lesser of (i) the fair market value of the Parent’s Investment in such Subsidiary as of the date of such redesignation as determined by the Parent in good faith or (ii) such fair market value as of the date on which such Subsidiary was originally designated as an Unrestricted Subsidiary, plus

(E)              $150.0 million.

(b)                  The provisions of Section 4.05(a) will not prohibit:

(1)              the payment of any dividend on Capital Stock in the Parent or a Restricted Subsidiary within 60 days after declaration thereof if at the declaration date such payment was permitted by the provisions of Section 4.05;

(2)              the purchase, repurchase, redemption, defeasance or other acquisition or retirement of any Qualified Capital Interests of the Parent by conversion into, or by or in exchange for, Qualified Capital Interests, or out of net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Parent) of other Qualified Capital Interests of the Parent;

(3)              the redemption, defeasance, repurchase or acquisition or retirement for value of any Debt of the Parent or a Subsidiary Guarantor that is subordinate in right of payment to the Notes or the applicable Guarantee out of the net cash proceeds of a substantially concurrent issue and sale (other than to a Subsidiary of the Parent) of (x) new subordinated Debt of the Parent or such Subsidiary Guarantor, as the case may be, incurred in accordance with this Indenture or (y) of Qualified Capital Interests of the Parent;

(4)              the purchase, redemption, retirement or other acquisition for value of Capital Stock of the Parent held by employees or former employees of the Parent or any Restricted Subsidiary (or their estates or beneficiaries under their estates) upon death, disability, retirement or termination of employment or alteration of employment status or pursuant to the terms of any agreement under which such Capital Stock was issued; provided, however , that the aggregate cash consideration paid for such purchase, redemption, retirement or other acquisition of such Capital Stock does not exceed $5.0 million in any calendar year; provided further, however , that any unused amounts in any calendar year may be carried forward to one or more future periods subject to a maximum aggregate amount of repurchases made pursuant to this clause (iv) not to exceed $10.0 million in any calendar year; provided, however , that such amount in any calendar year may be increased by an amount not to exceed (A) the cash proceeds received by the Parent or any of its Restricted Subsidiaries from the sale of Qualified Capital Interests of the Parent to employees of the Parent and its Restricted Subsidiaries that occurs after the Issue Date; provided, however , that the amount of such cash proceeds utilized for any such repurchase, retirement, other acquisition or dividend will not increase the amount available for Restricted Payments under clause (iii) of Section 4.05(a); plus (B) the cash proceeds of key man life insurance policies received by the Parent and its Restricted Subsidiaries after the Issue Date ( provided, however , that the Parent may elect to apply all or any portion of the aggregate increase contemplated by the proviso of this clause (4) in any calendar year);
 

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(5)              repurchase of Capital Stock deemed to occur upon the exercise of stock options, warrants or other convertible or exchangeable securities;

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

(7)              the declaration and payment of dividends to holders of any class or series of Redeemable Capital Interests of the Parent or any Restricted Subsidiary issued or incurred in compliance with Section 4.06;

(8)              upon the occurrence of a Change of Control or an Asset Sale, the defeasance, redemption, repurchase or other acquisition of any subordinated Debt pursuant to provisions substantially similar to those described under Section 4.10 and Section 4.11 at a purchase price not greater than 101% of the principal amount thereof (in the case of a Change of Control) or at a percentage of the principal amount thereof not higher than the principal amount applicable to the Notes (in the case of an Asset Sale), plus any accrued and unpaid interest thereon; provided, however , that prior to or contemporaneously with such defeasance, redemption, repurchase or other acquisition, the Issuer has made an Offer to Purchase with respect to the applicable Notes and has repurchased all Notes validly tendered for payment and not withdrawn in connection therewith;

(9)              to the extent no Default in any payment in respect of principal or interest under the Notes or Event of Default has occurred and is continuing or will occur as a consequence thereof, the payment of regular cash quarterly dividends on the Parent’s common stock; provided, however , that in no event shall the amount of dividends paid in any calendar year under this clause (9) exceed $200.0 million;

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

(11)           to the extent no Default in any payment in respect of principal or interest under the Notes or an Event of Default has occurred and is continuing or will occur as a consequence thereof, other Restricted Payments not in excess of $50.0 million in the aggregate;

(12)           to the extent no Default in any payment in respect of principal or interest under the Notes or an Event of Default has occurred and is continuing or will occur as a consequence thereof, any Restricted Payment so long as on the date of such Restricted Payment, after giving pro forma effect thereto and to any related transactions as if the same had occurred at the beginning of the Parent’s most recent four consecutive fiscal quarters for which internal financial statements of the Parent are available, the Consolidated Debt Ratio would not exceed 2.50 to 1.00; and

(13)           any Restricted Payment made in connection with the Transactions.

(c)              If any Person in which an Investment is made, which Investment  constitutes a Restricted Payment when made, thereafter becomes a Restricted Subsidiary in accordance with this Indenture, all such Investments previously made in such Person shall no longer be counted as Restricted Payments for purposes of calculating the aggregate amount of Restricted Payments pursuant to clause (iii) of Section 4.05(a), in each case to the extent such Investments would otherwise be so counted.

(d)              For purposes of this Section 4.05, if a particular Restricted Payment  involves a non-cash payment, including a distribution of assets, then such Restricted Payment shall be deemed to be an amount equal to the cash portion of such Restricted Payment, if any, plus an amount equal to the fair market value of the non-cash portion of such Restricted Payment as determined by the Parent in good faith.
 

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Section 4.06                   Limitation on Debt .

(a)              The Parent will not, and will not permit any of its Restricted Subsidiaries to incur any Debt (including Acquired Debt); provided , however , that the Parent, the Issuer and any Restricted Subsidiary may incur Debt (including Acquired Debt) if, immediately after giving effect to the incurrence of such Debt and the receipt and application of the proceeds therefrom:

(1)              the Consolidated Fixed Charge Coverage Ratio of the Parent and its Restricted Subsidiaries would be greater than 2.00 to 1.00; and

(2)              no Default shall have occurred and be continuing at the time or as a consequence of the incurrence of such Debt (any Debt incurred pursuant to this provision being herein referred to as “ Coverage Debt ”); provided, however , that the amount of Debt (other than Acquired Debt) that may be incurred or issued pursuant to the foregoing by Non-Guarantor Subsidiaries shall not exceed $100.0 million at any one time outstanding.

(b)              Notwithstanding Section 4.06(a), the Parent and its Restricted Subsidiaries may incur Permitted Debt.

(c)              For purposes of determining any particular amount of Debt under this Section  4.06:

(1)              Debt outstanding under the Credit Agreement and the Sumitomo Credit Agreement on the Issue Date will at all times be treated as incurred pursuant to clause (1) of the definition of Permitted Debt and shall not be permitted to be reclassified and

(2)              guarantees or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount will not be included.

(d)              Except as provided above, for purposes of determining compliance with  this Section 4.06, in the event that an item of Debt meets the criteria of more than one of the types of Debt described above, including any Coverage Debt and any category of Permitted Debt, the Parent, in its sole discretion, shall classify, and from time to time may reclassify, all or any portion of such item of Debt.

(e)              For purposes of determining compliance of any non-U.S. dollar-denominated Debt with this Section 4.06, the amount outstanding under U.S. dollar-equivalent principal amount of Debt denominated in a foreign currency shall at all times be calculated based on the relevant currency exchange rate in effect on the date such Debt was incurred, in the case of any term Debt, or first committed, in the cases of any revolving credit Debt; provided, however , that if such Debt is incurred to Refinance other Debt denominated in the same or different currency, and such Refinancing would cause the applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such Refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such Refinancing Debt does not exceed the principal amount of such indebtedness being Refinanced.
 

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(f)              The accrual of interest, the accretion or amortization of original issue discount and the payment of interest on Debt in the form of additional Debt or payment of dividends on Capital Stock in the forms of additional shares of Capital Stock with the same terms will not be deemed to be an incurrence of Debt or issuance of Capital Stock for purposes of this Section 4.06.

Section 4.07                   Limitation on Liens .

(a)              The Parent will not, nor will the Parent permit any Restricted Subsidiary to, issue, assume or guarantee any Debt secured by a Lien upon any Principal Property or upon any shares of stock of any Restricted Subsidiary without effectively providing that the Notes and the Guarantees, together with, if the Parent so determines, any other indebtedness or obligation then existing or thereafter created, ranking equally in right of payment with the Notes or the Guarantees, shall be secured equally and ratably with, or, at the Parent’s option, prior to, such Debt so long as such Debt shall be so secured, except that this restriction will not apply to:

(1)              Liens existing on the Issue Date;

(2)              Liens affecting property of a Person existing at the time it becomes  a Restricted Subsidiary or at the time it is merged into or consolidated with the Parent or a Restricted Subsidiary;

(3)              Liens:

(i)              on property existing at the time of acquisition thereof,

(ii)              to secure payment of all or part of the purchase price thereof,

(iii)              to secure Debt incurred prior to, at the time of or within 12 months after such acquisition for the purpose of financing all or part of the purchase price thereof, or

(iv)              assumed or incurred in connection with the acquisition of property;

(4)              Liens on property to secure all or part of the cost of repairing,  altering, constructing, improving, exploring, drilling or developing such property, or to secure Debt incurred to provide funds for such purpose;


(5)              Liens in connection with non-recourse Debt;

    (6)              Liens on current assets or other personal property, other than shares of stock of Subsidiaries, to secure loans maturing not more than one year from the date of the creation thereof or to secure any renewal thereof for not more than one year at any one time;

(7)              Liens which secure indebtedness owing by a Restricted Subsidiary to the Parent or another Restricted Subsidiary of the Parent;

(8)              Liens on property of any Restricted Subsidiary principally engaged in a financing or leasing business; and
 
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(9)              any extension, renewal or replacement, or successive extensions, renewals or replacements, in whole or in part, of any Lien referred to in the foregoing or of any Debt secured thereby; provided that the principal amount of Debt secured thereby shall not, with respect to Liens referred to in clauses (1) through (4) above, exceed the principal amount of Debt so secured at the time of such extension, renewal or replacement, and that such extension, renewal or replacement Lien shall be limited to all or part of substantially the same property which secured the Lien extended, renewed or replaced, plus improvements on such property.

(b)              Notwithstanding 4.07(a), the Parent and any one or more of its Restricted Subsidiaries may, without securing the Notes and the Guarantees, issue, assume or guarantee Debt secured by Liens which would not be permitted by Section 4.07(a) in an aggregate amount which, together with:

(1) the aggregate principal amount of all of the Parent’s other Debt and Debt of its Restricted Subsidiaries secured by a Lien upon any Principal Property or upon any shares of stock of any Restricted Subsidiary that would not be permitted to be secured by Liens under Section 4.07(a); and

(2) the Attributable Debt in respect of Sale and Lease-Back Transactions existing at such time (other than Sale and Lease-Back Transactions in which the property involved would have been permitted to be secured under Section 4.07(a) or the proceeds of which have been applied in accordance with Section 4.08(a)(2) to the retirement of long-term indebtedness);

does not at the time exceed 10% of Consolidated Net Tangible Assets.

(c)              For purposes of this Section 4.07 and Section 4.08, the sale or other  transfer of any interest in property of the character commonly referred to as a “production payment,” is not considered Debt secured by a Lien.

Section 4.08                  Limitation on Sale and Lease-Back Transactions .
 
(a)            The Parent will not, nor will the Parent permit any Restricted Subsidiary to, enter into any arrangement with any Person providing for the leasing by the Parent or any Restricted Subsidiary of any Principal Property, except for (x) temporary leases for terms of not more than three years, (y) leasing arrangements between the Parent and a Subsidiary or (z) leasing arrangements between Subsidiaries, title to which property has been or is to be sold or transferred by the Parent or such Restricted Subsidiary to such Person (such transaction, a “ Sale and Lease-Back Transaction ”), unless the proceeds of any such sale are at least equal to the fair value, as determined by the Board of Directors of the Parent, of such property and either:

(1) the Parent or such Restricted Subsidiary would be permitted under Section 4.07(a) to secure Debt by a Lien on the Principal Property to be leased in an amount at least equal to the Attributable Debt in respect of such Sale and Lease-Back Transaction without equally and ratably securing the Notes pursuant to Section 4.07; or

(2) the Parent applies an amount equal to the fair value of the property so leased to the retirement, within 90 days of the effective date of any such Sale and Lease-Back Transaction, of the Issuer’s or the Parent’s long-term indebtedness which ranks senior or equal to the Notes or the related Guarantee (other than indebtedness held by the Parent or any of its Subsidiaries).
 

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For the avoidance of doubt, Sale and Lease-Back Transactions do not include arrangements with governmental bodies entered into for the purpose of financing the purchase price or the cost of constructing or improving the property subject thereto.

(b)              Notwithstanding the provisions of Section 4.08(a), the Parent or any of its  Restricted Subsidiaries may enter into any Sale and Lease-Back Transaction which would not be permitted under Section 4.08(a) if the amount of the Attributable Debt in respect of such Sale and Lease-Back Transaction, together with:

(1) all of the Parent’s Debt and Debt of its Restricted Subsidiaries secured by a Lien on Principal Property or shares of stock of any Restricted Subsidiary and not permitted under Section 4.07(a); and

(2) all other Attributable Debt in respect of Sale and Lease-Back Transactions existing at such time (other than Sale and Lease-Back Transactions in which the property involved would have been permitted to have a Lien in accordance with Section 4.07(a) or the proceeds of which have been applied in accordance with Section 4.08(a)(2) to the retirement of long-term indebtedness);

does not at the time exceed 10% of Consolidated Net Tangible Assets.

Section 4.09                  Future Guarantors .

(a)              After the Issue Date, the Parent will cause each Restricted Subsidiary of the Parent (other than the Issuer) that guarantees (i) the Credit Agreement or (ii) any Material Capital Markets Debt issued by the Parent, the Issuer or any Subsidiary Guarantor to, within 45 days of the incurrence of such guarantee, execute and deliver to the Trustee a supplemental indenture to this Indenture, which may be  in the form of Exhibit C hereto pursuant to which such Restricted Subsidiary will guarantee payment of the Notes on the same terms and conditions as those set forth in this Indenture.

(b)              Each Guarantee of a Subsidiary Guarantor shall be released in accordance with the provisions of Section 11.06.

(c)              Any Subsidiary Guarantor that makes a payment under its Guarantee will be entitled upon payment in full of all obligations that are guaranteed under this Indenture to a contribution from each other Subsidiary Guarantor in an amount equal to such other Subsidiary Guarantor’s pro rata portion of such payment based on the respective net assets of all the Subsidiary Guarantors at the time of such payment determined in accordance with GAAP.

Section 4.11                  Limitation on Asset Sales .

(a)              The Parent will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless :

(1)              the Parent (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the fair market value of the assets or Capital Stock issued or sold or otherwise disposed of as determined by the Parent in good faith; and
 

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(2)              except in the case of a Permitted Asset Swap, at least 75% of the consideration received in the Asset Sale by the Parent or such Restricted Subsidiary is in the form of cash or Eligible  Cash Equivalents.

For the purposes of this Section 4.11(a), the following will be deemed to be cash:

(i)              any liabilities, as shown on the most recent consolidated balance sheet of the Parent or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Guarantee) that are assumed by the transferee of any such assets pursuant to a customary assignment and assumption agreement that releases the Parent or such Restricted Subsidiary from further liability;

(ii)              any securities, notes or other obligations received by the Parent or any such Restricted Subsidiary from such transferee that are converted by the Parent or such Restricted Subsidiary into cash within 180 days of their receipt to the extent of the cash received in that conversion; and

(iii)              any Designated Non-cash Consideration received by the Parent or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value as determined by the Parent in good faith, taken together with all other Designated Non-cash Consideration received pursuant to this clause (iii) that is at that time outstanding, not to exceed $50.0 million 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)              Within 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Parent (or the applicable Restricted Subsidiary, as the case may be) may apply such Net Cash Proceeds at its option:

(A)              to permanently repay (a) Debt under the Credit Agreement and, if the obligation repaid is revolving credit Debt, to correspondingly reduce commitments with respect thereto and/or (b) other unsecured Debt ranking pari passu in right of payment with the Notes or the Parent’s Guarantee of the Notes (provided that if the Parent shall so reduce obligations under such other unsecured Debt, other than the Notes, the Parent will (x) equally and ratably reduce obligations under the Notes under any applicable optional redemption provisions or by open market purchases or (y) make an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders to purchase at a purchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest and additional interest, if any, the pro rata principal amount of Notes);

(B)              to acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes a Restricted Subsidiary of the Parent;

(C)              to make a capital expenditure in or that is used or useful in a Permitted Business or to make expenditures for maintenance, repair or improvement of existing properties and assets;

(D)              to acquire other assets (other than inventory) that are used or useful in a Permitted Business;
 

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(E)              to repay or repurchase Debt secured by the assets of the Parent or any Restricted Subsidiaries; or

(F)              any combination of the foregoing.

(c)              Any Net Cash Proceeds from Asset Sales that are not applied, invested or subject to an offer to repurchase as provided in Section 4.11(b) will constitute “ Excess Proceeds .” When the aggregate amount of Excess Proceeds with respect to the Notes exceeds $50.0 million, the Issuer will, within 30 days, make an offer to purchase to all Holders of such Notes (an “ Asset Sale Offer ”), and to all holders of other Debt containing provisions similar to those set forth in this Indenture with respect to assets sales (including, without limitation, the 2025 Notes), to purchase the maximum aggregate principal amount of such Notes and such other Debt that may be purchased out of the Excess Proceeds. The offer price for the Notes in any Asset Sale Offer will be equal to 100% of the principal amount plus accrued and unpaid interest to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer in respect of such Notes, the Issuer may use those funds for any purpose not otherwise prohibited by this Indenture and they will no longer constitute Excess Proceeds. If the aggregate principal amount of Notes and other Debt tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Excess Proceeds will be allocated between such Notes and such other Debt based on the principal amount (or accreted value, if applicable) of such Notes and such other Debt tendered and the Trustee will select the Notes to be purchased on a pro rata basis among all such Notes tendered (subject to DTC procedures). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.

(d)              The Issuer will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of any Notes as a result of an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale Offer provisions of the Notes, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Asset Sale Offer provisions of the Notes by virtue of such conflict.

Section 4.12                   Effectiveness of Covenants .
 
(a)        Following the first day (such date, the “ Termination Date ”):

(1)              the Notes have a rating of Investment Grade from both S&P and Moody’s and

(2)              no Default has occurred and is continuing under this Indenture, the Issuer, the Parent and its Restricted Subsidiaries shall no longer be subject to the provisions of Sections 4.05, 4.06, 4.09 and 4.11.

(b)              In the event that the Notes’ credit rating is downgraded from Investment Grade by any Rating Agency, the provisions of Sections 4.05, 4.06, 4.09 and 4.11 will not thereafter be reinstated.

(c)              Promptly following the Termination Date, the Issuer shall provide an Officers’ Certificate to the Trustee regarding such occurrence. The Trustee shall have no obligation to independently determine or verify if a Termination Date has occurred or notify the Holders of the Termination Date. The Trustee may provide a copy of such Officers’ Certificate to any Holder upon request.
 

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1.05              Article 5 “Successors” is hereby amended and restated in its entirety as follows:

ARTICLE 5

SUCCESSORS

Section 5.01                   Consolidation, Merger, Conveyance, Transfer or Lease .

(a)              The Issuer will not merge or consolidate with any other Person or sell or convey all or substantially all of its assets to any Person, unless :

(1)              the successor Person (if other than the Issuer) (the “ Successor Issuer ”) shall be a corporation organized under the laws of the United States or any state thereof and shall expressly assume (a) the due and punctual payment of the principal of and premium, if any, and interest on all the Notes, according to their tenor, and the due and punctual performance and observance of all of the covenants and conditions under this Indenture to be performed or observed by the Issuer, by supplemental indenture satisfactory in form to the Trustee, executed and delivered to the Trustee by such Person and (b) all obligations of the Issuer under the Registration Rights Agreement, by a written instrument satisfactory in form to the parties thereto, executed and delivered to such parties by such Person;

(2)              the Successor Issuer shall not, immediately after such merger or consolidation, or such sale or conveyance, be in default in the performance of any such covenant or condition;

(3)              the Parent and each Subsidiary Guarantor (unless the Parent or such Subsidiary Guarantor is the other party to the transactions described above, in which case the preceding clause (1) shall apply) shall have by supplemental indenture confirmed that the applicable Guarantee shall apply to such Successor Issuer’s obligations under this Indenture and the Notes and shall have by written agreement confirmed that its obligations under the Registration Rights Agreement shall continue to be in effect; and

(4)              the Issuer shall have provided the Trustee with an Opinion of Counsel and Officers’ Certificate each stating that such merger or consolidation, or such sale or conveyance, and such supplemental indenture, if any, comply with this Indenture.

(b)              Subject to the limitations set forth in this Indenture, the Successor Issuer will succeed to, and be substituted for, the Issuer under this Indenture, the Notes and the Registration Rights Agreement.

(c)              the Parent will not merge or consolidate with any other Person or sell or convey all or substantially all of its assets to any Person, unless:
 
(1)              the successor Person (if other than the Parent) (the “ Successor Guarantor ”) shall be a corporation organized under the laws of the United States or any state thereof and shall expressly assume by supplemental indenture satisfactory in form to the Trustee, executed and delivered to the Trustee by such Person all the obligations of the Parent under the Guarantee, this Indenture and the Registration Rights Agreement;
 

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(2)              the Successor Guarantor shall not, immediately after such merger or consolidation, or such sale or conveyance, be in default in the performance of any such covenant or condition; and

(3)              the Successor Guarantor shall have provided the Trustee with an Opinion of Counsel and Officers’ Certificate each stating that such merger or consolidation, or such sale or conveyance, and such supplemental indenture, if any, comply with this Indenture.

(d)              The Parent will not permit any Subsidiary Guarantor to merge or consolidate with any other Person or sell or convey all or substantially all of its assets to any Person, unless:
(1)              (A)                the successor Person (if other than the Parent, the Issuer or such Subsidiary Guarantor) (the “ Successor Subsidiary Guarantor ”) shall expressly assume by supplemental indenture satisfactory in form to the Trustee, executed and delivered to the Trustee by such Person all the obligations of such Subsidiary Guarantor under the applicable Guarantee and this Indenture;

(B)              the Successor Subsidiary Guarantor shall not, immediately after such merger or consolidation, or such sale or conveyance, be in default in the performance of any such covenant or condition; and

(C)              the Successor Subsidiary Guarantor shall have provided the Trustee with an Opinion of Counsel and Officers’ Certificate confirming compliance with this Indenture; or

(2)              the merger, consolidation, sale or conveyance complies with Section 4.11.

(e)              Notwithstanding anything in the foregoing provisions of this Section 5.01 to the contrary, this Section 5.01 shall not apply to the transactions contemplated by the Separation Agreement or by the Merger Agreement.

Section 5.02                   Successor Entity Substituted .

Upon any merger, consolidation or sale or conveyance of all or substantially all  of the assets of the Parent, any Subsidiary Guarantor or the Issuer, as the case may be, in accordance with Section 5.01, the Parent, such Subsidiary Guarantor or the Issuer, as the case may be, will be released from its obligations under this Indenture, the Notes, the Guarantees and the Registration Rights Agreement, as applicable, and the Successor Issuer, the Successor Guarantor or the Successor Subsidiary Guarantor, as the case may be, will succeed to, and be substituted for, and may exercise every right and power of, the Parent, such Subsidiary Guarantor or the Issuer, as the case may be, under this Indenture, the Notes, the Registration Rights Agreement and the Guarantees, as applicable.

1.06                Section 6.01 “Events of Default” is hereby amended and restated in its entirety as follows:

Section 6.01                   Events of Default .

Each of the following is an “ Event of Default ”:
 

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(1)              default in the payment in respect of the principal of, or premium, if any, on any Note when due and payable (whether at Stated Maturity or upon repurchase, acceleration,  optional redemption or otherwise);

(2)              default in the payment of any interest (including Additional Interest (as required by the Registration Rights Agreement)) upon any Note when it becomes due and payable, and continuance of such default for a period of 30 days;

(3)              default in the performance, or breach, of any covenant or agreement of the Parent or any Restricted Subsidiary in this Indenture (other than a covenant or agreement a default in which performance or which breach is specifically dealt with in clauses (1) or (2) above), and continuance of such default or breach for a period of 60 days after written notice thereof has been given to the Issuer by the Trustee or to the Issuer and the Trustee by the Holders of at least 25% in aggregate principal amount of the outstanding Notes ( provided that, and without limiting the foregoing in this clause (3), in the case of a default or breach of any covenant or agreement described under Section 4.03, no Event of Default shall occur (and any such default or breach shall be deemed to not have occurred for all purposes under this Indenture) with respect to any failure to furnish or file any information or report required thereunder if the Parent files or furnishes such information or report within 120 days after the Parent was required (or would have been required) to file the same pursuant to the Commission’s rules and regulations);

(4)              the applicable Guarantee ceases to be in full force and effect (except as contemplated by this Indenture) or is declared null and void in a judicial proceeding or the Parent or a Subsidiary Guarantor denies in writing or disaffirms in writing its obligations under this Indenture or Guarantee, other than by reason of the termination of this Indenture or the release of such Guarantee in accordance with the terms of this Indenture;

(5)              the Parent or a Significant Subsidiary shall (i) voluntarily commence any proceeding or file any petition seeking relief under Title 11 of the United States Code or any other federal or state bankruptcy, insolvency or similar law, (ii) consent to the institution of, or fail to controvert in a timely and appropriate manner, any such proceeding or the filing of any such petition, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator or similar official for the Parent or a Significant Subsidiary or for a substantial part of its property, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors, (vi) admit in writing its inability or fail generally to pay its debts as they become due or (vii) take corporate action for the purpose of effecting any of the foregoing; or

(6)              the entry of an order or decree by a court having competent jurisdiction in the premises for (i) relief in respect of the Parent or a Significant Subsidiary or a substantial part of the property of the Parent or a Significant Subsidiary, under Title 11 of the United States Code or any other federal or state bankruptcy, insolvency or similar law, (ii) the appointment of a receiver, trustee, custodian, sequestrator or similar official for the Parent or a Significant Subsidiary or for a substantial part of the property of the Parent or a Significant Subsidiary or (iii) the winding-up or liquidation of the Parent or a Significant Subsidiary; and such order or decree shall continue unstayed and in effect for 60 days.


1.07              Section 6.02 “Acceleration” is hereby amended and restated in its entirety as follows:

Section 6.02                   Acceleration
 
(a)        If an Event of Default (other than an Event of Default described in clauses (5) and (6) of Section 6.01) with respect to the Parent or the Issuer occurs and is continuing, then and in every such case, unless the principal of all the Notes have already become due and payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount of the then outstanding Notes may declare the principal of, premium, if any, and accrued and unpaid interest on the Notes to be due and payable immediately by a notice in writing to the Issuer (and to the Trustee if given by such Holders).  Upon such declaration, such principal, premium, if any, and accrued and unpaid interest, if any, will be due and payable.
 

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(b)              If, at any time after the principal amount of the Notes shall have been so declared to be immediately due and payable, and before any judgment or decree for the payment of the moneys due on account of such declaration shall have been obtained or entered, all defaults under this Indenture, other than the nonpayment of principal of or premium, if any, or accrued interest on the Notes which shall have become due by acceleration shall have been remedied—then and in every such case the Holders of a majority in aggregate principal amount of the Notes then outstanding, by written notice to the Issuer and to the Trustee, may waive all defaults and rescind and annul such declaration and its consequences; but no such waiver or rescission and annulment shall extend or shall, affect any subsequent default, or shall impair any right consequent thereon.

(c)              The Trustee may withhold from Holders notice of any Default (except any Default in the payment of principal of, premium, if any, or interest on the Notes) if the Trustee determines that withholding notice is in the interests of such Holders to do so.

(d)              In case an Event of Default described in clauses (5) or (6) of Section 6.01 with respect to the Parent or the Issuer occurs, the principal of, premium, if any, and accrued and unpaid interest, if any, on all the then outstanding Notes will ipso facto become immediately due and payable without any declaration or other act on the part of the Trustee or any Holders.


1.08              Section 6.09 “Restoration of Rights and Remedies” is hereby amended as follows:

(i)              Before the reference to “the Subsidiary Guarantors”, “the Parent,” is inserted.

1.09              Section 6.12 “Trustee May File Proofs of Claim” is hereby amended as follows:

(i)              Before the reference to “the Subsidiary Guarantors”, “the Parent and” is added.

1.10              Section 6.13 “Priorities” is hereby amended as follows:

(i)              Before the reference to “a Subsidiary Guarantor” in Section 6.13(3), “the
Parent or” is added.

1.11              Section 7.02 “Rights of Trustee” is hereby amended as follows:

(i)              After each reference to “the Issuer “ in Section 7.02(e), “, the Parent”
is added.

1.12              Section 8.02 “Defeasance and Discharge” is hereby amended and restated in its entirety as follows:

Section 8.02                   Defeasance and Discharge .
 
(a)        Upon the Issuer’s exercise under Section 8.01 of the option applicable to this Section 8.02, the Issuer, the Parent and the Subsidiary Guarantors shall, subject to the satisfaction of the conditions set forth in Section 8.04, be deemed to have been discharged from their obligations with respect to the Indenture, all outstanding Notes and Guarantees on the date the conditions set forth below are satisfied (“ Defeasance ”).  For this purpose, Defeasance means that the Issuer shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes, which shall thereafter be deemed to be “outstanding” only for the purposes of Section 8.05 and the other Sections of this Indenture referred to in clauses (1) through (5) below, and to have satisfied all of its other obligations under such Notes and this Indenture, including that of the Parent and the Subsidiary Guarantors (and the Trustee, on demand of and at the expense of the Issuer, shall execute proper instruments acknowledging the same), except for the following provisions which shall survive until otherwise terminated or discharged hereunder:
 

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(1)              the rights of Holders to receive payments in respect of the principal of and premium, if any, and interest on the Notes when such payments are due;

(2)              the Issuer’s obligations with respect to the Notes concerning issuing temporary Notes, registration of Notes, mutilated, destroyed, lost or stolen Notes and the maintenance of an office or agency for payment and money for security payments held in trust;

(3)              the rights, powers, trusts, duties and immunities of the Trustee;

(4)              the Issuer’s right of optional redemption pursuant to Section 3.07; and

(5)              this Section 8.02.

(b)              Following the Issuer’s exercise of its Defeasance option, payment of the Notes may not be accelerated because of an Event of Default.

(c)              Subject to compliance with this Article 8, the Issuer may exercise its option under this Section 8.02 notwithstanding the prior exercise of its option under Section 8.03.

1.13              Section 8.03 “Covenant Defeasance” is hereby amended and restated in its entirety as follows:

Section 8.03                  Covenant Defeasance .
 
Upon the Issuer’s exercise under Section 8.01 of the option applicable to this Section 8.03, the Issuer, the Parent and the Subsidiary Guarantors shall, subject to the satisfaction of the conditions set forth in Section 8.04, be released from their obligations under the covenants contained in Sections 3.09, 4.03, 4.05, 4.06, 4.07, 4.08, 4.09, 4.10 and 4.11 with respect to the outstanding Notes, and the Subsidiary Guarantors shall be deemed to have been discharged from their obligations with respect to all Guarantees (other than the Guarantee of the Parent), on and after the date the conditions set forth in Section 8.04 are satisfied (“ Covenant Defeasance ”), and the Notes shall thereafter be deemed not “outstanding” for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed “outstanding” for all other purposes hereunder (it being understood that such Notes shall not be deemed outstanding for accounting purposes).  For this purpose, Covenant Defeasance means that, with respect to this Indenture and the outstanding Notes, the Issuer may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event of Default under Section 6.01, but, except as specified above, the remainder of this Indenture, the Notes and the Guarantee of the Parent shall be unaffected thereby.  In addition, upon the Issuer’s exercise under Section 8.01 of the option applicable to this Section 8.03, subject to the satisfaction of the conditions set forth in Section 8.04, an Event of Default specified in Section 6.01(3) (only with respect to covenants that are released as a result of such Covenant Defeasance) and 6.01(4), (5) (solely with respect to the Parent or any Significant Subsidiary) and (6) (solely with respect to the Parent or any Significant Subsidiary) will no longer constitute an Event of Default.
 

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1.14              Section 8.04 “Conditions to Legal or Covenant Defeasance” is hereby amended as follows:

(i)              Before each reference to “the Issuer” in Section 8.04(a)(5), “the Parent,” is added.

1.15              Section 8.07 “Reinstatement” is hereby amended as follows:

(i)              After the reference to “the Issuer’s”, “, the Parent’s” is added.

1.16              Section 9.01 “Without Consent of Holders” is hereby amended and restated in its entirety as follows:

Section 9.01                  Without Consent of Holders .  

(a)              Notwithstanding Section 9.02, without the consent of any Holder, the Issuer, the Parent and the Trustee may, at any time and from time to time, amend or supplement this Indenture:

(1)              to evidence the succession of another Person to the Parent, the Issuer or a Subsidiary Guarantor and the assumption by any such successor of the covenants of the Parent, the Issuer or such Subsidiary Guarantor, as applicable, under this Indenture, the Notes and the Guarantees thereof;

(2)              to add to the covenants of the Parent, the Issuer and the Subsidiary Guarantors for the benefit of the applicable Holders, or to surrender any right or power herein conferred upon the Parent, the Issuer and the Subsidiary Guarantors;

(3)              to add additional Events of Default;

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

(5)              to evidence and provide for the acceptance of appointment under this Indenture by a successor Trustee; provided that the successor Trustee is otherwise qualified and eligible to act as such under the terms of this Indenture;

(6)              to provide for or confirm the issuance of Additional Notes in accordance with the terms of this Indenture;

(7)              to add a Subsidiary Guarantor in accordance with this Indenture or release (a) the Parent in accordance with Article V or (b) a Subsidiary Guarantor from its Guarantee when permitted by the terms of this Indenture;

(8)              to cure any ambiguity, defect, omission, mistake or inconsistency;

(9)              to make any other provisions with respect to matters or questions arising under this Indenture; provided , however , that such actions pursuant to this clause (9) shall not adversely affect the interests of the Holders in any material respect, as determined in good faith by the Board of Directors of the Parent;
 

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(10)              to provide for the issuance of Exchange Notes, which shall be treated, together with any outstanding Notes, as a single class of securities;

(11)              to conform the text of this Indenture or the Notes to any provision of the “Description of notes” section of the Offering Memorandum to the extent that the Trustee has received an Officers’ Certificate stating that such text constitutes an unintended conflict with the description of the corresponding provision in the “Description of notes” section of the Offering Memorandum; or

(12)              to effect or maintain the qualification of this Indenture under the Trust Indenture Act.

Upon the request of the Issuer subject to the terms hereof, and upon receipt by the  Trustee of the documents described in Section 12.04, the Trustee shall join with the Issuer, the Parent and the Subsidiary Guarantors in the execution of any amended or supplemental indenture authorized or permitted by the terms of this Indenture and to make any further appropriate agreements and stipulations that may be therein contained, but the Trustee shall not be obligated to enter into such amended or supplemental indenture that affects its own rights, duties or immunities under this Indenture or otherwise.

1.17              Section 9.02          “With Consent of Holders” is hereby amended and restated in its entirety as follows:

Section 9.02                   With Consent of Holders .
 
(a)        Except as provided in Section 9.01 and this Section 9.02, with the consent of the Holders of not less than a majority in aggregate principal amount of the then outstanding Notes, the Parent, the Issuer and the Trustee may amend or supplement this Indenture for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture, or of the Notes or the related Guarantees, or of modifying in any manner the rights of the Holders under this Indenture, including the definitions herein.  Section 2.08 and Section 2.09 shall determine which Notes are considered to be “outstanding” for the purposes of this Section 9.02.

(b)              Without the consent of each affected Holder, an amendment, supplement or waiver under this Section 9.02 may not (with respect to any Notes held by a non-consenting Holder):

(1)              change the Stated Maturity of any Note or of any installment of interest on any Note, or reduce the amount payable in respect of the principal thereof or the rate of interest thereon or any premium payable thereon, or reduce the amount that would be due and payable on acceleration of the maturity thereof, or change the place of payment where, or the coin or currency in which, any Note or any premium or interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof, or change the date on which any Notes may be subject to redemption or reduce the redemption price therefor;

(2)              reduce the percentage in aggregate principal amount of the then outstanding Notes, the consent of whose Holders is required for any such amendment or supplement, or the consent of whose Holders is required for any waiver of compliance with covenants relating to the payment of principal of or premium, if any, or interest on the Notes or related defaults or Events of Default and their consequences (except with respect to a rescission of acceleration of the Notes by the Holders of a majority in aggregate principal amount of the Notes then outstanding, and a waiver of the Event of Default under Section 6.01(1) or 6.01(2) that resulted from such acceleration) provided for in this Indenture;
 

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(3)              modify the obligations of the Issuer to make offers to purchase upon a Change of Control if such modification was done after the occurrence of the related Change of Control;

(4)              modify or change any provision of this Indenture affecting the ranking of the Notes in a manner adverse to the applicable Holders; or

(5)              modify any of the provisions of this Section 9.02(b) or provisions relating to waiver of compliance with covenants relating to the payment of principal of or premium, if any, or interest on the Notes or related defaults or Events of Default and their consequences (except with respect to a rescission of acceleration of the Notes by the Holders of a majority in aggregate principal amount of the Notes then outstanding, and a waiver of the Event of Default under Section 6.01(1) or 6.01(2) that resulted from such acceleration), except to increase any such percentage required for such actions or to provide that such other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each outstanding Note issued thereunder that is affected thereby;

(c)              Upon the request of the Issuer, and upon the filing with the Trustee of evidence reasonably satisfactory to the Trustee of the consent of the Holders as aforesaid, and upon receipt by the Trustee of the documents described in Section 7.02 and Section 12.04, the Trustee shall, subject to the terms hereof, join with the Issuer, the Parent and the Subsidiary Guarantors in the execution of such amended or supplemental indenture unless such amended or supplemental indenture directly affects the Trustee’s own rights, duties or immunities under this Indenture, in which case the Trustee may, but shall not be obligated to, enter into such amended or supplemental indenture.

(d)              It shall not be necessary for the consent of the Holders under this Section 9.02 to approve the particular form of any proposed amendment, supplement or waiver.  It shall be sufficient if such consent approves the substance of such proposed amendment or supplement.  A consent to any amendment, supplement or waiver under this Indenture by any Holder given in connection with a tender of such Holder’s Notes will not be rendered invalid by such tender.

(e)              A consent to any amendment, supplement or waiver of this Indenture or the Notes or the Guarantee by any Holder given in connection with a tender of such Holder’s Notes will not be rendered invalid by such tender.

1.18              Section 10.01 “Satisfaction and Discharge” is hereby amended and restated in its entirety as follows:

Section 10.01               Satisfaction and Discharge .
 
(a)        This Indenture will be discharged, and will cease to be of further effect as to all Notes, when either:

(1)              all Notes theretofore authenticated and delivered have been delivered to the Trustee for cancellation; or

(2)(A) all such Notes not theretofore delivered to the Trustee for cancellation  have become due and payable or will become due and payable within one year or are to be called for redemption within one year (a “ Discharge ”) under irrevocable arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Issuer, and the Issuer has irrevocably deposited or caused to be deposited with the Trustee funds in an amount sufficient to pay and discharge the entire indebtedness on the Notes, not theretofore delivered to the Trustee for cancellation, for principal of, premium, if any, and accrued interest to the Stated Maturity or date fixed for redemption;
 

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(B)              the Issuer, the Parent or the applicable Subsidiary Guarantor has paid or caused to be paid all other sums then due and payable under this Indenture by the Issuer with respect to the Notes;

(C)              the deposit will not result in a breach or violation of, or constitute a default under, any instrument (other than this Indenture) to which the Issuer, the Parent or any Subsidiary Guarantor is a party or by which the Issuer, the Parent or the applicable Subsidiary Guarantor is bound;

(D)              the Issuer has delivered irrevocable instructions to the Trustee under this Indenture to apply the deposited money toward the payment of the Notes at maturity or on the redemption date, as the case may be; and

(E)              the Issuer has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel each stating that all conditions precedent under this Indenture relating to the Discharge have been complied with.

(b)              Notwithstanding the satisfaction and discharge of this Indenture, if money shall have been deposited with the Trustee pursuant to subclause (A) of clause (2) of Section 10.01(a), the provisions of Section 10.02 and Section 8.06 shall survive.

1.19              Article 11 “Guarantees” is hereby amended and restated in its entirety as follows:

ARTICLE 11

GUARANTEES

Section 11.01               Guarantee .

(a)              Subject to this Article 11, each of the Parent and the Subsidiary Guarantors  hereby, jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior unsecured basis, to each Holder and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Issuer hereunder or thereunder, that: (1) the principal, premium, if any, and interest on the Notes shall be promptly paid in full when due, whether at Stated Maturity, by acceleration, redemption or otherwise, and interest on the overdue principal and interest on the Notes, if any, if lawful, and all other obligations of the Issuer to the Holders or the Trustee hereunder or under the Notes shall be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (2) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise (the obligations so guaranteed, collectively, the “ Guaranteed Obligations ”).  Failing payment by the Issuer when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Parent and the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately.  Each of the Parent and Subsidiary Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.

(b)              The Parent and the Subsidiary Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, the recovery of any judgment against the Issuer, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor.  The Parent and each Subsidiary Guarantor hereby waive diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuer, any right to require a proceeding first against the Issuer, protest, notice and all demands whatsoever and covenants that this Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture, or pursuant to Section 11.06.
 

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(c)              Each of the Parent and the Subsidiary Guarantors also agrees, jointly and severally, to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) Incurred by the Trustee or any Holder in enforcing any rights under this Section 11.01.

(d)              If any Holder or the Trustee is required by any court or otherwise to return to the Issuer, the Parent, the Subsidiary Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to the Issuer, the Parent or the Subsidiary Guarantors, any amount paid either to the Trustee or such Holder, this Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect.

(e)              The Parent and each Subsidiary Guarantor agree that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Guaranteed Obligations until payment in full of all Guaranteed Obligations.  The Parent and each Subsidiary Guarantor further agree that, as between the Parent and the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (1) the maturity of the Guaranteed Obligations may be accelerated as provided in Article 6 for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations, and (2) 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 the Parent and the Subsidiary Guarantors for the purpose of this Guarantee.  The Parent and the Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor or Parent, as the case may be, so long as the exercise of such right does not impair the rights of the Holders under the Guarantees.

(f)              Each Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Issuer for liquidation or reorganization, should the Issuer become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Issuer’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes or the Guarantees, whether as a “voidable preference,” “fraudulent transfer” or otherwise, all as though such payment or performance had not been made.  In the event that any payment or any part thereof, is rescinded, reduced, restored or returned, the Notes shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.

(g)              In case any provision of any Guarantee shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

(h)              Each payment to be made by the Parent or a Subsidiary Guarantor in respect of its Guarantee shall be made without set-off, counterclaim, reduction or diminution of any kind or nature.

Section 11.02               Limitation on Parent and Subsidiary Guarantor Liability .

Each Subsidiary Guarantor and the Parent, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Guarantee of such Subsidiary Guarantor and the Parent not constitute a fraudulent conveyance or a fraudulent transfer for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to any Guarantee.  To effectuate the foregoing intention, the Trustee, the Holders, the Parent and the Subsidiary Guarantors hereby irrevocably agree that the obligations of each Subsidiary Guarantor and the Parent shall be limited to the maximum amount as will, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Subsidiary Guarantor or the Parent that are relevant under such laws and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Subsidiary Guarantor or the Parent in respect of the obligations of such other Subsidiary Guarantor or the Parent under this Article 11, result in the obligations of such Subsidiary Guarantor or the Parent under its Guarantee not constituting a fraudulent conveyance or fraudulent transfer under applicable law.  Each Subsidiary Guarantor and the Parent that makes a payment under its Guarantee will be entitled upon payment in full of all Guaranteed Obligations under this Indenture to a contribution from each other Subsidiary Guarantor or the Parent, as the case may be, in an amount equal to such other Subsidiary Guarantor’s or the Parent’s pro rata portion of such payment based on the respective net assets of all the Subsidiary Guarantors and the Parent at the time of such payment, determined in accordance with GAAP.
 

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Section 11.03                Execution and Delivery .

(a)              To evidence its Guarantee set forth in Section 11.01, each Subsidiary Guarantor and the Parent hereby agree that this Indenture or a supplemental indenture to this Indenture shall be executed on behalf of such Subsidiary Guarantor and the Parent, as the case may be, by an Officer or person holding an equivalent title.

(b)              Each Subsidiary Guarantor and the Parent hereby agree that its Guarantee set forth in Section 11.01 shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Guarantee on the Notes.

(c)              If an Officer whose signature is on this Indenture or a supplemental indenture to this Indenture no longer holds that office at the time the Trustee authenticates the Note, the Guarantees shall be valid nevertheless.

(d)              The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Guarantee set forth in this Indenture on behalf of the Subsidiary Guarantors and the Parent, as the case may be.

Section 11.04                Subrogation .

Each Subsidiary Guarantor and the Parent shall be subrogated to all rights of Holders against the Issuer in respect of any amounts paid by any Subsidiary Guarantor or the Parent, as the case may be, pursuant to the provisions of Section 11.01; provided that, if an Event of Default has occurred and is continuing, no Subsidiary Guarantor or the Parent shall be entitled to enforce or receive any payments arising out of, or based upon, such right of subrogation until all amounts then due and payable by the Issuer under this Indenture or the Notes shall have been paid in full.

Section 11.05                Benefits Acknowledged .

Each Subsidiary Guarantor and the Parent acknowledge that it will receive direct and indirect benefits from the financing arrangements contemplated by this Indenture and that the guarantee and waivers made by it pursuant to its Guarantee are knowingly made in contemplation of such benefits.
 

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Section 11.06                Release of Guarantees .

(a)              A Guarantee by a Subsidiary Guarantor shall be automatically and unconditionally released and discharged, and no further action by such Subsidiary Guarantor, the Issuer or the Trustee shall be required for the release of such Subsidiary Guarantor’s Guarantee, upon:

(1)(i)              upon the sale or other disposition (including by way of a consolidation or merger) of such Subsidiary Guarantor;

(ii)              upon the sale or disposition of all or substantially all assets of such Subsidiary Guarantor;

(iii)              at such time as such Subsidiary Guarantor no longer guarantees any (i) Credit Agreement or (ii) Material Capital Markets Debt of the Parent, the Issuer or any Subsidiary Guarantor;

(iv)              upon defeasance of the Notes, as provided under Article 8;

(v)  at such time as such Subsidiary Guarantor is no longer a Restricted Subsidiary; or

(vi)  as described under Article 9

in the case of Section 11.06(a)(1)(i) and (ii), other than to the Parent or a Restricted Subsidiary of the Parent; and

(2)              such Subsidiary Guarantor delivering to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for in this Indenture relating to such release have been complied with.

(b)              At the written request of the Issuer, the Trustee shall execute and deliver any documents reasonably required in order to evidence such release, discharge and termination in respect of the applicable Guarantee.

1.20              Section 12.02                  “Notices” is hereby amended as follows:

(i)              After the first and last references to “the Issuer,” in Section 12.02(a)  “the Parent,” is added.

(ii)              After the reference to “the Issuer” in Section 12.02(a) immediately prior to the notice information for the Issuer, “, the Parent” is added.

1.21              Section 12.03 “Communication by Holders with Other Holders”  is hereby amended as follows:

(i)              After the reference to “the Issuer,” “the Parent,” is added.

1.22              Section 12.04 “Certificate and Opinion as to Conditions Precedent” is hereby amended as follows:

(i)              After each reference to “the Issuer”, “, the Parent” is added.
 

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1.23              Section 12.07             “No Personal Liability of Directors, Officers, Employees, Members, Partners and Stockholders” is hereby amended as follows:

(i)              After the second reference to “or any Subsidiary Guarantor”, “, the Parent” is added.

(ii)              After the first and last  reference to “Subsidiary Guarantor”, “or the Parent” is added.

1.24              Section 12.09               “Waiver of Jury Trial” is hereby amended as follows:

(i)              After the reference to “THE ISSUER”, “, THE PARENT” is added.

1.25              Section 12.12               “Successors” is hereby amended as follows:

(i)              After the reference to “Subsidiary Guarantor”, “and the Parent” is  added.

1.26              Section 12.19               “Qualification of Indenture” is hereby amended as follows:

(i)              After each reference to “the Issuer”, “, the Parent” is added.

Section 2.                        Application of Supplemental Indenture .

The Base Indenture, as supplemented by this First Supplemental Indenture, is in all respects ratified and confirmed.  This First Supplemental Indenture shall be deemed part of the Base Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby.

Section 3.                        Governing Law .

THIS FIRST SUPPLEMENTAL INDENTURE WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

Section 4.                        Waiver of Jury Trial .

EACH OF THE ISSUER, THE PARENT AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS FIRST SUPPLEMENTAL INDENTURE OR THE TRANSACTIONS CONTEMPLATED HEREBY.

Section 5.                        Successors .

All agreements of the Issuer, the Parent and the Trustee in this First Supplemental Indenture shall bind their successors.

Section 6.                        Counterpart Originals .
 

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The parties may sign any number of copies of this First Supplemental Indenture.  Each signed copy shall be an original, but all of them together represent the same agreement.

Section 7.                        Trustee Makes No Representation .

The Trustee makes no representation as to the validity or sufficiency of this First Supplemental Indenture.

[Signature Page Follows]
 

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IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be duly executed as of the day and year first above written.


  BLUE CUBE SPINCO INC., as Issuer  
       
 
By:
/s/ Stephen C. Curley  
    Name: Stephen C. Curley   
    Title: Vice President & Treasurer   
       
 
  OLIN CORPORATION, as Parent  
       
 
By:
/s/ Stephen C. Curley     
    Name: Stephen C. Curley    
    Title: Vice President & Treasurer    
     
 
  U.S. BANK NATIONAL ASSOCIATION,
as Trustee 		 
       
 
By:
/s/ Donald T. Hurrelbrink    
    Name: Donald T. Hurrelbrink   
    Title: Vice President  
       


 
 
 
 




 
 
 
 
[Signature Page to First Supplemental Indenture]
Exhibit 4.4
 

FIRST SUPPLEMENTAL INDENTURE

FIRST SUPPLEMENTAL INDENTURE, dated as of October 5, 2015 (this “ First Supplemental Indenture ”), among Blue Cube Spinco Inc., a Delaware corporation (the “ Issuer ”), Olin Corporation, a Virginia corporation (the “ Parent ”), and U.S. Bank National Association, as trustee (the “ Trustee ”), to that certain indenture dated as of October 5, 2015 between the Issuer and the Trustee (the “ Base Indenture ” and, together with the First Supplemental Indenture, the “ Indenture ”).

WITNESSETH :

WHEREAS, capitalized terms used and not defined herein shall have the meanings ascribed to such terms in the Base Indenture;

WHEREAS, the Issuer executed and delivered to the Trustee the Base Indenture, providing for the issuance of the Issuer’s 10.00% Senior Notes due 2025 (the “ Notes ”);

WHEREAS, Section 9.01 of the Base Indenture provides that the Issuer and the Trustee may amend or supplement the Base Indenture without the consent of Holders as provided in this First Supplemental Indenture;

WHEREAS, all conditions and requirements necessary to make this First Supplemental Indenture a valid and binding instrument in accordance with its terms and the terms of the Base Indenture have been satisfied; and

WHEREAS, the   Issuer, the Parent and the Trustee desire to execute and deliver this First Supplemental Indenture.

NOW, THEREFORE, in consideration of the premises and of the mutual covenants herein contained, the Issuer, the Parent and the Trustee hereby agree as follows:

Section 1.         Amendments to the Base Indenture .

1.01.        The following definitions in Section 1.01 “Definitions” are hereby amended and restated in their entirety or added to Section 1.01 if not therein, as applicable, as follows:

“ Acquired Debt ” means Debt (1) of a Person (including an Unrestricted Subsidiary) existing at the time such Person becomes a Restricted Subsidiary, or is merged with or into the Parent or a Restricted Subsidiary, or (2) assumed in connection with the acquisition of assets from such Person. Acquired Debt shall be deemed to have been incurred, with respect to clause (1) of the preceding sentence, on the date such Person becomes a Restricted Subsidiary and, with respect to clause (2) of the preceding sentence, on the date of consummation of such acquisition of assets.

“ Asset Acquisition ” means:

(1)          an Investment by the Parent or any Restricted Subsidiary in any other Person pursuant to which such Person shall become a Restricted Subsidiary, or shall be merged with or into the Parent or any Restricted Subsidiary; or

(2)          the acquisition by the Parent or any Restricted Subsidiary of the assets of any Person which constitute all or substantially all of the assets of such Person, any division or line of business of such Person or any other properties or assets of such Person other than in the ordinary course of business and consistent with past practices.
 
 
 
“ Asset Sale ” means any transfer, conveyance, sale, lease or other disposition (including, without limitation, dispositions pursuant to any consolidation or merger) by the Parent or any of its Restricted Subsidiaries to any Person in any single transaction or series of transactions of:

(i)           Capital Stock in another Person (other than directors’ qualifying shares or shares or interests required to be held by foreign nationals pursuant to local law); or

(ii)          any other property or assets (other than in the normal course of business, including any sale or other disposition of obsolete or permanently retired equipment);

provided, however , that the term “Asset Sale” shall exclude:

(1)          any asset disposition permitted by Section 5.01 that constitutes a disposition of all or substantially all of the assets of the Parent and its Restricted Subsidiaries taken as a whole;

(2)          any transfer, conveyance, sale, lease or other disposition of property or assets, the gross proceeds of which (exclusive of indemnities) do not exceed in any one or related series of transactions $25.0 million;

(3)          sales or other dispositions of cash or Eligible Cash Equivalents;

(4)          sales of interests in Unrestricted Subsidiaries;

(5)          the sale and leaseback of any assets within 90 days of the acquisition thereof; provided that any assets acquired in the Transactions shall be deemed to have been acquired on the Issue Date;

(6)          the disposition of assets that, in the good faith judgment of the Parent, are no longer used or useful in the business of such entity;

(7)          a Restricted Payment or Investment that is otherwise permitted by this Indenture;

(8)          any trade-in of equipment in exchange for other equipment; provided, however that in the good faith judgment of the Parent, the Parent or such Restricted Subsidiary receives equipment having a fair market value equal to or greater than the equipment being traded in;

(9)          the creation of a Lien (but not the sale or other disposition of the property subject to such Lien);

(10)        leases or subleases in the ordinary course of business to third persons not interfering in any material respect with the business of the Parent or any of its Restricted Subsidiaries and otherwise in accordance with the provisions of this Indenture;

(11)        any disposition by a Restricted Subsidiary to the Parent or by the Parent or a Restricted Subsidiary to a Restricted Subsidiary;
 
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(12)        dispositions of accounts receivable in connection with the collection or compromise thereof in the ordinary course of business and consistent with past practice;

(13)        licensing or sublicensing of intellectual property or other general intangibles in accordance with industry practice in the ordinary course of business;

(14)        any transfer of accounts receivable, or a fractional undivided interest therein, by a Receivable Subsidiary in a Qualified Receivables Transaction; or

(15)        sales of accounts receivable to a Receivable Subsidiary pursuant to a Qualified Receivables Transaction for the fair market value thereof as determined by the Parent in good faith; including cash or other financial accommodation, such as the provision of letters of credit by such Receivable Subsidiary on behalf of or for the benefit of the transferor of such accounts receivable, in an amount at least equal to 75% of the fair market value thereof as determined by the Parent in good faith (for the purposes of this clause (15), Purchase Money Notes will be deemed to be cash).

For purposes of this definition, any series of related transactions that, if effected as a single transaction, would constitute an Asset Sale, shall be deemed to be a single Asset Sale effected when the last such transaction which is a part thereof is effected.
 
“ Board of Directors ” means:

(1)          with respect to the Parent or any Subsidiary, its board of directors or any duly authorized committee thereof;

(2)          with respect to a corporation, the board of directors of such corporation or any duly authorized committee thereof; and

(3)          with respect to any other entity, the board of directors or similar body of the general partner or managers of such entity or any duly authorized committee thereof.

“ Change of Control ” means the occurrence of any of the following after the Issue Date:

(1)          the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the property and assets of the Parent and its Subsidiaries, taken as a whole, to any “person” (as that term is used in Section 13(d)(3) of the Exchange Act), other than the Parent or one of the Parent’s wholly-owned Subsidiaries;

(2)          the adoption of a plan relating to the liquidation or dissolution of the Parent or the Issuer;

(3)          the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any “person” (as that term is used in Section 13(d)(3) of the Exchange Act) becomes the beneficial owner, directly or indirectly, of more than 50% of the Parent’s Voting Stock, measured by voting power rather than number of shares;
 
(4)          the merger or consolidation of the Parent with or into another Person or the merger of another Person with or into the Parent or the merger of any Person with or into a Subsidiary of the Parent, unless the holders of a majority of the aggregate voting power of the Voting Stock of the Parent, immediately prior to such transaction, hold securities of the surviving or transferee Person that represent, immediately after such transaction, at least a majority of the aggregate voting power of the Voting Stock of the surviving or transferee Person;
 
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(5)          the Parent ceases to own, directly or indirectly, 100% of all outstanding equity interests of the Issuer (except as a result of the merger of the Issuer with and into the Parent); or

(6)          for so long as any of the Existing Notes remain outstanding, the first day on which a majority of the members of the Parent’s Board of Directors are not Continuing Directors.

Notwithstanding the foregoing, the Transactions shall not constitute a Change of Control.

Notwithstanding the foregoing, a transaction effected to create a holding company for the Parent will not be deemed to involve a Change of Control if (a) pursuant to such transaction the Parent becomes a wholly-owned Subsidiary of such holding company and (b) the holders of the Voting Stock of such holding company immediately following such transaction are the same as the holders of the Parent’s Voting Stock immediately prior to such transaction.

“ Consolidated Cost Savings ” means, for any period, those synergies, operating expense reductions and cost-savings of the Parent and its Restricted Subsidiaries that are reasonably identifiable, factually supportable and projected by the Parent in good faith to be realized following the Issue Date as a result of restructurings, reorganizations, divestitures, cost savings initiatives, production rationalizations and other similar initiatives (collectively, “ Initiatives ”) (calculated on a pro forma basis as if such synergies, operating expense reductions and cost-savings had been realized on the first day of such period, and net of the amount of actual benefits realized during such period from such Initiatives to the extent already included in Consolidated Net Income for such period); provided that (i) no synergies, operating expense reductions or cost-savings shall be added to Consolidated EBITDA pursuant to clause (e) thereof to the extent duplicative of any expenses or charges otherwise added to (or excluded from) Consolidated EBITDA, whether through a pro forma adjustment or otherwise, for such period and (ii) projected amounts (and not yet realized) (x) may be added (the date on which such amounts are added, the “ Initiative Commencement Date ”) once actions in respect of such Initiative have been taken or are expected to be taken (in the good faith determination of the Parent) within 12 months and (y) may no longer be added back in calculating Consolidated EBITDA pursuant to clause (e) thereof to the extent occurring more than six full fiscal quarters after the Initiative Commencement Date.

“ Consolidated Debt Ratio ” means, as of any date of determination, the ratio of (1) the aggregate amount of Debt of the Parent and its Restricted Subsidiaries then outstanding as of such date of determination to (2) Consolidated EBITDA for the most recent four consecutive fiscal quarters for which internal financial statements of the Parent are available, in each case with pro forma and other adjustments to each of Debt and Consolidated EBITDA to reflect any incurrences or repayments of Debt and any acquisitions or dispositions of businesses or assets since the beginning of such four consecutive fiscal quarter period (which pro forma and other adjustments will be determined in good faith by a  responsible financial or accounting officer of the Parent and shall not be required to be made in accordance with Regulation S-X promulgated by the Commission).

“ Consolidated EBITDA ” means, for any period, Consolidated Net Income for such period (adjusted to exclude all extraordinary or unusual items and any gains or losses on sales of assets outside the ordinary course of business) plus, without duplication and (except with respect to synergies included in Consolidated Cost Savings) to the extent deducted in calculating such Consolidated Net Income for such period, the sum of (a) income tax expense, (b) interest expense, amortization or writeoff of debt discount with respect to Debt, (c) depreciation and amortization expense, (d) amortization of intangibles (including, but not limited to, goodwill) and organization costs, (e) Consolidated Cost Savings; provided that with respect to any period, the aggregate amount added back in the calculation of Consolidated EBITDA for such period pursuant to this clause (e) and clause (f) below shall not exceed 20% of Consolidated EBITDA (in each case calculated prior to giving effect to any add-backs pursuant to this clause (e) and clause (f) below), (f) costs and expenses incurred in connection with the implementation of Initiatives; provided that with respect to any period, the aggregate amount added back in the calculation of Consolidated EBITDA for such period pursuant to this clause (f) and clause (e) above shall not exceed 20% of Consolidated EBITDA (in each case calculated prior to giving effect to any add-backs pursuant to this clause (f) and clause (e) above), (g) the sum (without duplication) of all non-recurring fees, costs and expenses incurred by the Parent and its Restricted Subsidiaries, whether before, on or within six months after the Merger Closing Date, in connection with the Transactions during such period; provided that the aggregate amount added back in the calculation of Consolidated EBITDA pursuant to this clause (g) shall not exceed $100,000,000, (h) all payments triggered in respect of the Parent’s non-qualified deferred compensation and post-retirement benefit plans in connection with the Transactions during such period, (i) any other non-cash charges and (j) adjustments and add-backs of the nature set forth in the Offering Memorandum under the section entitled “Summary—Summary historical and pro forma financial data”, minus, (x) any cash payments made during such period in respect of items described in clause (i) above subsequent to the fiscal quarter in which the relevant non-cash charge was reflected as a charge in the statement of Consolidated Net Income and (y) to the extent included in calculating such Consolidated Net Income for such period, any non-cash income (other than amounts accrued in the ordinary course of business under accrual-based revenue recognition procedures in accordance with GAAP).
 
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“ Consolidated Fixed Charge Coverage Ratio ” means, with respect to any Person, the ratio of Consolidated EBITDA of such Person during the four full fiscal quarters for which financial statements are available (the “ Four Quarter Period ”) ending prior to the date of the transaction giving rise to the need to calculate the Consolidated Fixed Charge Coverage Ratio (the “ Transaction Date ”) to Consolidated Fixed Charges of such Person for the Four Quarter Period. In addition to and without limitation of the foregoing, for purposes of this definition, “Consolidated EBITDA” and “Consolidated Fixed Charges” shall be calculated after giving effect on a pro forma basis for the period of such calculation to:

(i)           the incurrence of any Debt of such Person or any of its Restricted Subsidiaries (and the application of the proceeds thereof) and the repayment of other Debt, other than the incurrence or repayment of Debt in the ordinary course of business for working capital purposes pursuant to working capital facilities, occurring during the Four Quarter Period or at any time subsequent to the last day of the Four Quarter Period and on or prior to the Transaction Date, as if such incurrence or repayment, as the case may be (and the application of the proceeds thereof), occurred on the first day of the Four Quarter Period; and

(ii)          any Asset Sales or Asset Acquisitions (including, without limitation, any Asset Acquisition giving rise to the need to make such calculation as a result of such Person or one of its Restricted Subsidiaries (including any Person who becomes a Restricted Subsidiary as a result of the Asset Acquisition) incurring, assuming or otherwise being liable for Acquired Debt and also including any Consolidated EBITDA attributable to the assets which are the subject of the Asset Acquisition) occurring during the Four Quarter Period or at any time subsequent to the last day of the Four Quarter Period and on or prior to the Transaction Date, as if such Asset Sale or Asset Acquisition (including the incurrence, assumption or liability for any such Acquired Debt) occurred on the first day of the Four Quarter Period.

For purposes of this definition, pro forma calculations shall be made in good faith by a responsible financial or accounting officer of the Parent and shall not be required to be made in accordance with Regulation S-X promulgated under the Securities Act, and such pro forma calculations may also include operating expense reductions for such period resulting from the Asset Sale or Asset Acquisition (as determined in good faith by senior management of the Parent) for which pro forma effect is being given (A) that have been realized or (B) for which steps have been taken or are reasonably expected to be taken within six months of the date of such transaction and are supportable and quantifiable and, in each case, including, but not limited to (a) reduction in personnel expenses, (b) reduction of costs related to administrative functions, (c) reduction of costs related to leased or owned properties and (d) reductions from the consolidation of operations and streamlining of corporate overhead.
 
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Furthermore, in calculating “Consolidated Fixed Charges” for purposes of determining the denominator (but not the numerator) of this “Consolidated Fixed Charge Coverage Ratio”:

(i)           interest on outstanding Debt determined on a fluctuating basis as of the Transaction Date and which will continue to be so determined thereafter shall be deemed to have accrued at a fixed rate per annum equal to the rate of interest on such Debt in effect on the Transaction Date;

(ii)          if interest on any Debt actually incurred on the Transaction Date may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rates, then the interest rate in effect on the Transaction Date will be deemed to have been in effect during the Four Quarter Period; and

(iii)         notwithstanding clause (i) or (ii) above, interest on Debt determined on a fluctuating basis, to the extent such interest is covered by agreements relating to Hedging Obligations, shall be deemed to accrue at the rate per annum resulting after giving effect to the operation of such agreements.

“ Consolidated Net Income ” means, for any period, the consolidated net income (or loss) of the Parent and its Restricted Subsidiaries, determined on a consolidated basis in accordance with GAAP; provided that there shall be excluded (a) the income (or deficit) of any Person accrued prior to the date it becomes a Restricted Subsidiary of the Parent or is merged into or consolidated with the Parent or any of its Restricted Subsidiaries, (b) the income (or deficit) of any Person   (other than a Restricted Subsidiary of the Parent) in which the Parent or any of its Restricted Subsidiaries has an ownership interest, except to the extent that any such income is actually received by the Parent or such Subsidiary in the form of dividends or similar distributions and (c) solely for the purposes of Section 4.05, the undistributed earnings of any Restricted Subsidiary of the Parent to the extent that the declaration or payment of dividends or similar distributions by such Restricted Subsidiary is not at the time permitted by the terms of any contractual obligation or any law applicable to such Restricted Subsidiary.

“ Consolidated Net Tangible Assets ” means the total amount of the Parent’s consolidated assets after deducting therefrom (i) all current liabilities, excluding any thereof which are by their terms extendible or renewable at the option of the obligor thereon to a time more than 12 months after the time as of which the amount thereof is being computed and (ii) unamortized Debt discount and expense, goodwill, trademarks, brand names, patents and other intangible assets, all as shown on the Parent’s latest audited consolidated financial statements at the time of the determination.

“ Continuing Director ” means, as of any date of determination, any member of the Parent’s Board of Directors who (i) was a member of such Board of Directors on the first date that the Notes were issued or (ii) was nominated for election or elected to the Parent’s Board of Directors with the approval (for purposes of the Notes) of a majority of the Continuing Directors who were members of the Parent’s Board of Directors at the time of such nomination or election.
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“ Credit Agreement ” means the credit agreements, dated as of June 23, 2015 (as amended, supplemented or otherwise modified from time to time), among the Issuer or the Parent, as applicable, the other borrowers party thereto, Wells Fargo Bank, National Association, as administrative agent, and the other agents and lenders named therein, providing for (i) a revolving credit facility, which, upon the consummation of the Merger on the Merger Closing Date, shall provide for borrowings by the Parent and Olin Canada ULC and will be guaranteed by the Issuer and (ii) a term loan facility, which shall provide for borrowings by the Issuer and, upon the consummation of the Merger on the Merger Closing Date, will be guaranteed by the Parent, together with all related notes, letters of credit, guarantees, and any other related agreements and instruments executed and delivered in connection therewith, in each case as amended, modified, supplemented, restated, refinanced, refunded or replaced in whole or in part from time to time including by or pursuant to any agreement or instrument that exchanges, extends, refinances, renews, replaces, substitutes or otherwise restructures the maturity of any indebtedness thereunder, or increases the amount of available borrowings thereunder, or adds Subsidiaries of the Parent as additional borrowers or guarantors thereunder, in each case with respect to such agreement or any successor or replacement agreement and whether by the same or any other agent, lender, group of lenders, purchasers, institutional investors or debt holders.

“ Debt ” means any notes, bonds, debentures, loans or other similar evidences of indebtedness for money borrowed, issued, assumed or guaranteed by the Parent or any Restricted Subsidiary.

“ Debt Facility ” means one or more debt facilities (including, without limitation, the Credit Agreement and the Sumitomo Credit Agreement) or commercial paper facilities with banks or other institutional lenders providing for revolving credit loans, term loans, receivables financing (including through the sale of receivables to such lenders or to special purpose entities formed to borrow from such lenders against such receivables) or letters of credit or issuances of debt securities evidenced by notes, debentures, bonds or similar instruments, in each case, as amended, restated, modified, renewed, refunded, replaced or refinanced (including by means of sales of debt securities) in whole or in part from time to time (and whether or not with the original administrative agent, lenders or trustee or another administrative agent or agents, other lenders or trustee and whether provided under the original Credit Agreement and the original Sumitomo Credit Agreement or any other credit or other agreement or indenture).

“ Designated Non-cash Consideration ” means the fair market value as determined in good faith by the Parent of non-cash consideration received by the Parent or a Restricted Subsidiary in connection with an Asset Sale that is so designated as Designated Non-cash Consideration pursuant to an Officers’ Certificate, setting forth the basis of such valuation less the amount of cash or Eligible Cash Equivalents received in connection with a subsequent sale of or collection on such Designated Non-cash Consideration.

“ Eligible Cash Equivalents ” means any of the following Investments: (i) securities issued or directly and fully guaranteed or insured by the United States or any agency or instrumentality thereof ( provided that the full faith and credit of the United States is pledged in support thereof) maturing not more than one year after the date of acquisition; (ii) time deposits in and certificates of deposit of any Eligible Bank, provided that such Investments have a maturity date not more than two years after date of acquisition and that the Average Life of all such Investments is one year or less from the respective dates of acquisition; (iii) repurchase obligations with a term of not more than 180 days for underlying securities of the types described in clause (i) above entered into with any Eligible Bank; (iv) direct obligations issued by any state of the United States or any political subdivision or public instrumentality thereof, provided that such Investments mature, or are subject to tender at the option of the holder thereof, within 365 days after the date of acquisition and, at the time of acquisition, have a rating of at least A from S&P or A-2 from Moody’s (or an equivalent rating by any other nationally recognized rating agency); (v) commercial paper of any Person other than an affiliate of the Parent and other than structured investment vehicles, provided that such Investments have one of the two highest ratings obtainable from either S&P or Moody’s and mature within 180 days after the date of acquisition; (vi) overnight and demand deposits in and bankers’ acceptances of any Eligible Bank and demand deposits in any bank or trust company to the extent insured by the Federal Deposit Insurance Corporation against the Bank Insurance Fund; (vii) money market funds 95% of the assets of which comprise Investments of the types described in clauses (i) through (vi); and (viii) instruments equivalent to those referred to in clauses (i) through (vi) above or funds equivalent to those referred to in clause (vii) above denominated in U.S. dollars, Euros or any other foreign currency comparable in credit quality and tender to those referred to in such clauses and customarily used by corporations for cash management purposes in jurisdictions outside the United States to the extent reasonably required in connection with any business conducted by any Restricted Subsidiary organized in such jurisdiction, all as determined in good faith by the Parent.
 
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“ Excluded Contributions ” means the net cash proceeds received by the Parent after the Issue Date from:

(1)          contributions to its common equity capital, and

(2)          the sale (other than to a Restricted Subsidiary of the Parent or to any Parent management equity plan or stock option plan or any other management or employee benefit plan or agreement) of Capital Stock (other than Redeemable Capital Interests and preferred stock) of the Parent;

provided, however that such net cash proceeds will be designated by the Parent as “Excluded Contributions” in an Officers’ Certificate delivered to the Trustee and the net cash proceeds so designated will be excluded from the calculation set forth in Section 4.05(a)(iii).

“ Existing Notes ” means the Parent’s (i) 5.50% Senior Notes due 2022 and 6.75% Senior Notes due 2016, (ii) SunBelt Notes due 2012-2017, issued on December 22, 1997 and (iii) Variable-rate 2024 Bonds issued on October 14, 2010, Recovery Zone Bonds issued on December 9, 2010 and Recovery Zone Bonds due 2035 issued on December 27, 2010.

“ Guarantee ” means, with respect to the Notes, the Guarantee of the Parent or a Subsidiary Guarantor pursuant to the terms of this Indenture.

“ Investment ” by any Person means any direct or indirect loan, advance, guarantee for the benefit of (or other extension of credit) or capital contribution to (by means of any transfer of cash or other property or assets to another Person or any other payments for property or services for the account or use of another Person) another Person, including, without limitation, the following: (i) the purchase or acquisition of any Capital Stock or other evidence of beneficial ownership in another Person; (ii) the purchase, acquisition or guarantee of the Debt of another Person; and (iii) the purchase or acquisition of the business or assets of another Person substantially as an entirety but shall exclude: (a) accounts receivable and other extensions of trade credit in accordance with the Parent’s customary practices; (b) the acquisition of property and assets from suppliers and other vendors in the normal course of business; and (c) prepaid expenses and workers’ compensation, utility, lease and similar deposits, in the normal course of business.
 
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For purposes of Section 4.05 and the definition of “Unrestricted Subsidiary”:

(1)           “Investment” will include the portion (proportionate to the Parent’s equity interest in the Restricted Subsidiary to be designated as an Unrestricted Subsidiary) of the fair market value as determined by the Parent in good faith of the net assets of such Restricted Subsidiary of the Parent at the time that such Restricted Subsidiary is designated an Unrestricted Subsidiary; provided , however , that upon a redesignation of such Subsidiary as a Restricted Subsidiary, the Parent will be deemed to continue to have a permanent “Investment” in an Unrestricted Subsidiary in an amount (if positive) equal to (a) the Parent’s “Investment” in such Subsidiary at the time of such redesignation less (b) the portion (proportionate to the Parent’s equity interest in such Subsidiary) of the fair market value as determined by the Parent in good faith of the net assets of such Subsidiary at the time that such Subsidiary is so re-designated as a Restricted Subsidiary; and

(2)          any property transferred to or from an Unrestricted Subsidiary will be valued at its fair market value at the time of such transfer, as determined by the Parent in good faith.

“ Moody’s ” means Moody’s Investors Services, Inc. and any successor to its rating agency business.

“ Net Cash Proceeds ” means, with respect to Asset Sales of any Person, cash and Eligible Cash Equivalents received, net of: (i) all reasonable out-of-pocket costs and expenses of such Person incurred in connection with such a sale, including, without limitation, all legal, accounting, title and recording tax expenses, commissions and other fees and expenses incurred and all federal, state, foreign and local taxes arising in connection with such an Asset Sale that are paid or required to be accrued as a liability under GAAP by such Person; (ii) all payments made by such Person on any Debt that is secured by such properties or other assets in accordance with the terms of any Lien upon or with respect to such properties or other assets or that must, by the terms of such Lien or such Debt, or in order to obtain a necessary consent to such transaction or by applicable law, be repaid to any other Person (other than the Parent or a Restricted Subsidiary thereof) in connection with such Asset Sale; and (iii) all contractually required distributions and other payments made to minority interest holders in Restricted Subsidiaries of such Person as a result of such transaction; provided, however , that: (a) in the event that any consideration for an Asset Sale (which would otherwise constitute Net Cash Proceeds) is required by (I) contract to be held in escrow pending determination of whether a purchase price adjustment will be made or (II) GAAP to be reserved against other liabilities in connection with such Asset Sale, such consideration (or any portion thereof) shall become Net Cash Proceeds only at such time as it is released to such Person from escrow or otherwise; and (b) any non-cash consideration received in connection with any transaction, which is subsequently converted to cash, shall become Net Cash Proceeds only at such time as it is so converted.

“ Non-Guarantor Subsidiary ” means any Restricted Subsidiary that is not a Subsidiary Guarantor or the Issuer.

“ 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 the Parent or the Issuer.

“ Permitted Asset Swap ” means the concurrent purchase and sale or exchange of properties or assets (other than securities) that are used or useful in a Permitted Business or a combination of such assets and cash or Eligible Cash Equivalents between the Parent or any of its Restricted Subsidiaries and another Person; provided, however that any cash and Eligible Cash Equivalents must be applied in accordance with Section 4.11.

“ Permitted Business ” means any business similar in nature to any business conducted by the Parent and the Restricted Subsidiaries on the Issue Date and any business reasonably ancillary, incidental, complementary or related to, or a reasonable extension, development or expansion of, the business conducted by the Parent and the Restricted Subsidiaries on the Issue Date, in each case, as determined in good faith by the Parent.
 
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“ Permitted Debt ” means

(1)          Debt incurred by the Issuer, the Parent or any Subsidiary Guarantor pursuant to any Debt Facilities in an aggregate principal amount at any one time outstanding not to exceed (x) $2,880.0 million minus (y) any amount used to permanently repay such obligations (or permanently reduce commitments with respect thereto) pursuant to Section 4.11;

(2)          Debt under (a) the Notes issued on the Issue Date and any Exchange Notes issued in exchange for such Notes and (b) the 2023 Notes issued on the Issue Date and any exchange notes issued in exchange for such notes;

(3)          Guarantees of the Notes and any Exchange Notes issued in exchange for such Notes and guarantees of the 2023 Notes and any exchange notes issued in exchange for such notes;

(4)          Debt of the Parent or any Restricted Subsidiary outstanding on the Issue Date (other than Debt incurred pursuant to clauses (1), (2) or (3) above) (including the Existing Notes);

(5)          guarantees incurred by the Parent of Debt of a Restricted Subsidiary otherwise permitted to be incurred under this Indenture;

(6)          guarantees by any Restricted Subsidiary of Debt of the Parent or any other Restricted Subsidiary, including guarantees by any Restricted Subsidiary of Debt under the Credit Agreement and the Sumitomo Credit Agreement; provided, however, that (a) such Debt is permitted to be incurred under this Indenture and (b) if the Debt being guaranteed is subordinated in right of payment to the Notes, such guarantees are subordinated to the Notes to the same extent, if any, as the Debt being guaranteed;

(7)          Debt incurred in respect of workers’ compensation claims and self-insurance obligations, and, for the avoidance of doubt, indemnity, bid, performance, warranty, release, appeal, surety and similar bonds, letters of credit for operating purposes and completion guarantees provided or incurred (including guarantees thereof) by the Parent or a Restricted Subsidiary in the ordinary course of business;

(8)          Debt under Swap Contracts and Hedging Obligations incurred in the ordinary course of business and not for speculative purposes;

(9)          Debt owed by the Parent to any Restricted Subsidiary, or by any Restricted Subsidiary to the Parent or to any other Restricted Subsidiary, provided that if for any reason such Debt ceases to be held by the Parent or a Restricted Subsidiary, as applicable, such Debt shall cease to be Permitted Debt under this clause (9) and shall be deemed incurred as Debt of the Parent for purposes of this Indenture;

(10)        Debt of the Parent or a Subsidiary Guarantor pursuant to capital lease obligations, synthetic lease obligations and Purchase Money Debt and any Refinancing Debt that Refinances any Debt incurred pursuant to this clause (10); provided , however that the aggregate principal amount of all Debt incurred under this clause (10) and outstanding at any time may not exceed $100.0 million in the aggregate;
 
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(11)        Debt arising from agreements of the Parent or a Restricted Subsidiary providing for indemnification, contribution, earnout, adjustment of purchase price or similar obligations, in each case, incurred or assumed in connection with the acquisition or disposition of any business, assets or Capital Stock of a Restricted Subsidiary otherwise permitted under this Indenture;

(12)        the issuance by any of the Parent’s Restricted Subsidiaries to the Parent or to any of its Restricted Subsidiaries of shares of Redeemable Capital Interests or preferred stock; provided , however , that:

             (a)         any subsequent issuance or transfer of Capital Stock that results in any such Redeemable Capital Interests being held by a Person other than the Parent or a Restricted Subsidiary; and
 
             (b)        any sale or other transfer of any such Redeemable Capital Interests to a Person that is not either the Parent or a Restricted Subsidiary;

shall be deemed, in each case, to constitute an issuance of such Redeemable Capital Interests by such Restricted Subsidiary that was not permitted by this clause (12);

(13)        Debt 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 Debt is extinguished within five business days of incurrence;

(14)        Debt of the Parent or a Restricted Subsidiary not otherwise permitted pursuant to this definition, in an aggregate principal amount not to exceed $150.0 million at any time outstanding;

(15)        Purchase Money Notes incurred by any Receivable Subsidiary that is a Restricted Subsidiary in a Qualified Receivables Transaction and Non-Recourse Receivable Subsidiary Indebtedness;  p rovided , however that the aggregate amounts incurred and outstanding under all Qualified Receivables Transactions shall not exceed $250.0 million;

(16)        Debt of Foreign Restricted Subsidiaries in an aggregate principal amount not to exceed $50.0 million at any one time outstanding;

(17)        (x) Debt of the Parent, the Issuer or any Subsidiary Guarantor incurred or issued to finance an acquisition or (y) Acquired Debt; provided , however , that after giving pro forma effect to such acquisition, merger or consolidation, and the incurrence of such Debt (including pro forma application of the proceeds thereof), either:
 
                                             (a)         the Parent would be permitted to incur at least $1.00 of additional Coverage Debt pursuant to Section 4.06(a);
 
                                             (b)        the Consolidated Fixed Charge Coverage Ratio of the Parent and its Restricted Subsidiaries would not be lower than such ratio immediately prior to such acquisition, merger or consolidation; or
 
             (c)         such Debt constitutes Acquired Debt (other than Debt incurred in contemplation of the transaction or series of transactions pursuant to which such Person became a Restricted Subsidiary or was otherwise acquired by the Parent or a Restricted Subsidiary); provided that the only obligors with respect to such Debt shall be those Persons who were obligors of such Debt prior to such acquisition, merger or consolidation; and
 
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(18)        Refinancing Debt that Refinances Coverage Debt or Debt incurred pursuant to clauses (2), (4), (17) or this clause (18) of this definition of “Permitted Debt.”

“ Permitted Investments ” means:

(1)          Investments in existence on the Issue Date;

(2)          Investments required pursuant to any agreement or obligation of the Parent or a Restricted Subsidiary, in effect on the Issue Date, to make such Investments;

(3)          Investments in cash and Eligible Cash Equivalents;

(4)          Investments in property and other assets, owned or used by the Parent or any Restricted Subsidiary in the normal course of business;

(5)          Investments by the Parent or any of its Restricted Subsidiaries in the Parent or any Restricted Subsidiary;

(6)          Investments by the Parent or any Restricted Subsidiary in a Person, if as a result of such Investment (A) such Person becomes a Restricted Subsidiary or (B) such Person is merged, consolidated or amalgamated with or into, or transfers or conveys substantially all of its assets to, or is liquidated or wound-up into, the Parent or a Restricted Subsidiary;

(7)          Swap Contracts and Hedging Obligations;

(8)          receivables owing to the Parent or any of its Restricted Subsidiaries and advances to suppliers, in each case if created, acquired or made in the ordinary course of business and payable or dischargeable in accordance with customary trade terms;

(9)          Investments received in settlement of obligations owed to the Parent or any Restricted Subsidiary and as a result of bankruptcy or insolvency proceedings or upon the foreclosure or enforcement of any Lien in favor of the Parent or any Restricted Subsidiary;

(10)        Investments by the Parent or any Restricted Subsidiary not otherwise permitted under this definition, in an aggregate amount not to exceed the greater of (i) $250.0 million and (ii) 5% of Consolidated Net Tangible Assets at any one time outstanding;

(11)        loans and advances to officers, directors and employees of the Parent and Restricted Subsidiaries in an aggregate amount not to exceed $10.0 million in the aggregate at any one time outstanding, for travel, entertainment, relocation and analogous ordinary business purposes;

(12)        Investments the payment for which consists solely of Capital Stock of the Parent;

(13)        any Investment in any Person to the extent such Investment represents the non-cash portion of the consideration received in connection with an Asset Sale consummated in compliance with Section 4.11 or any other disposition of property not constituting an Asset Sale;
 
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(14)        payroll, travel 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 and consistent with past practice;
 
(15)        guarantees by the Parent or any Restricted Subsidiary of Debt of the Parent or a Restricted Subsidiary (other than a Receivables Subsidiary) of Debt otherwise permitted by Section 4.06;

(16)        any Investment by the Parent or any Restricted Subsidiary in a Receivable Subsidiary or any Investment by a Receivable Subsidiary in any other Person in connection with a Qualified Receivables Transaction, so long as any Investment in a Receivable Subsidiary is in the form of a Purchase Money Note or an Investment in Capital Stock; and

(17)       other Investments in any Person that is a joint venture engaged in a Permitted Business (other than an Investment in an Unrestricted Subsidiary) having an aggregate fair market value as determined by the Parent in good faith (measured on the date each such Investment was made and without giving effect to subsequent changes in value), when taken together with all other Investments made pursuant to this clause (q) since the Issue Date and existing at the time of the Investment, which is the subject of the determination, was made, not to exceed the greater of (i) $125 million and (ii) 2.5% of Consolidated Net Tangible Assets.

“ Principal Property ” means any of the Parent’s properties or plants or the properties or plants of any Restricted Subsidiary primarily used for the manufacture of products and located within the United States or its territories or possessions, except any such property or plant which the Board of Directors of the Parent by resolution declares is not of material importance to the total business conducted by the Parent and its Subsidiaries as an entirety.

“ Purchase Money Note ” means a promissory note of a Receivable Subsidiary issued to the Parent or any Restricted Subsidiary, to pay all or a portion of the purchase price of receivables and assets related thereto described in the definition of “Qualified Receivables Transaction” that are purchased in connection with a Qualified Receivables Transaction. The repayment of a Purchase Money Note may be subordinated to the repayment of other liabilities of the Receivable Subsidiary on terms determined in good faith by the Parent to be substantially consistent with market practice in connection with Qualified Receivables Transactions.

“ Qualified Receivables Transaction ” means any transaction or series of transactions entered into by the Parent or any of its Restricted Subsidiaries pursuant to which the Parent or such Restricted Subsidiary transfers to (1) a Receivable Subsidiary (in the case of a transfer by the Parent or any of its Restricted Subsidiaries) or (2) any other Person (in the case of a transfer by a Receivable Subsidiary), or grants a security interest in, any accounts receivable (whether now existing or arising in the future) of the Parent or any of its Restricted Subsidiaries, and any assets related thereto, including, without limitation, all collateral securing such accounts receivable, all contracts and all guarantees or other obligations in respect of such accounts receivable, proceeds of such accounts receivable and other assets which are customarily transferred or in respect of which security interests are customarily granted in connection with an accounts receivable financing transaction; provided such transaction is on market terms as determined in good faith by the Parent at the time the Parent or such Restricted Subsidiary enters into such transaction.
 
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“ Receivable Subsidiary ” means a Subsidiary of the Parent (other than the Issuer):

(1)          that is formed solely for the purpose of, and that engages in no activities other than activities in connection with, financing accounts receivable of the Parent and/or its Restricted Subsidiaries, including providing letters of credit on behalf of or for the benefit of the Parent and/or its Restricted Subsidiaries;

(2)          that is designated by the Board of Directors of the Parent as a Receivable Subsidiary pursuant to an Officers’ Certificate that is delivered to the Trustee;

(3)          that is either (a) a Restricted Subsidiary or (b) an Unrestricted Subsidiary designated in accordance with the definition of “Unrestricted Subsidiary”;

(4)          no portion of the Debt or any other obligation (contingent or otherwise) of which (a) is at any time guaranteed by the Parent or any Restricted Subsidiary (excluding guarantees of obligations (other than any guarantee of Debt) pursuant to Standard Securitization Undertakings), (b) is at any time recourse to or obligates the Parent or any Restricted Subsidiary in any way, other than pursuant to Standard Securitization Undertakings or (c) subjects any asset of the Parent or any other Restricted Subsidiary of the Parent, directly or indirectly, contingently or otherwise, to the satisfaction thereof, other than pursuant to Standard Securitization Undertakings (such Debt, “Non-Recourse Receivable Subsidiary Indebtedness”);

(5)          with which neither the Parent nor any Restricted Subsidiary has any material contract, agreement, arrangement or understanding other than (a) contracts, agreements, arrangements and understandings entered into in connection with a Qualified Receivables Transaction, (b) fees payable in the ordinary course of business in connection with servicing accounts receivable in connection with such a Qualified Receivables Transaction as determined in good faith by the Board of Directors of the Parent and (c) any Purchase Money Note issued by such Receivable Subsidiary to the Parent or a Restricted Subsidiary or any letters of credit provided by such Receivable Subsidiary on behalf of or for the benefit of the Parent or any Restricted Subsidiary; and

(6)          with respect to which neither the Parent nor any other Restricted Subsidiary has any obligation (a) to subscribe for additional shares of Capital Stock therein or make any additional capital contribution or similar payment or transfer thereto except in connection with a Qualified Receivables Transaction or (b) to maintain or preserve the solvency or any balance sheet term, financial condition, level of income or results of operations thereof.

“ Redeemable Capital Interests ” in any Person means any equity security of such Person that by its terms (or by terms of any security into which it is convertible or for which it is exchangeable), or otherwise (including the passage of time or the happening of an event), is required to be redeemed, is redeemable at the option of the holder thereof in whole or in part (including by operation of a sinking fund), or is convertible or exchangeable for Debt of such Person at the option of the holder thereof, in whole or in part, at any time prior to the Stated Maturity of the Notes; provided that only the portion of such equity security which is required to be redeemed, is so convertible or exchangeable or is so redeemable at the option of the holder thereof before such date will be deemed to be Redeemable Capital Interests. Notwithstanding the preceding sentence, any equity security that would constitute Redeemable Capital Interests solely because the holders of the equity security have the right to require the Parent to repurchase such equity security upon the occurrence of a Change of Control or an Asset Sale will not constitute Redeemable Capital Interests if the terms of such equity security provide that the Parent may not repurchase or redeem any such equity security pursuant to such provisions unless such repurchase or redemption complies with Section 4.05. The amount of Redeemable Capital Interests deemed to be outstanding at any time for purposes of this Indenture will be the maximum amount that the Parent and its Restricted Subsidiaries may become obligated to pay upon the maturity of, or pursuant to any mandatory redemption provisions of, such Redeemable Capital Interests or portion thereof, exclusive of accrued dividends.
 
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“ Refinancing Debt ” means Debt that Refinances any Debt incurred by the Parent or any Restricted Subsidiary pursuant to the terms of this Indenture, whether involving the same or any other lender or creditor or group of lenders or creditors, but only to the extent that

(1)          if the Debt being refinanced is subordinated in right of payment to the Notes, the Refinancing Debt is subordinated to the Notes to at least the same extent as the Debt being Refinanced if such Debt was subordinated to the Notes,

(2)          the Refinancing Debt is scheduled to mature either (a) no earlier than the Debt being Refinanced or (b) at least 91 days after the maturity date of the Notes,

(3)          the Refinancing Debt has an Average Life at the time such Refinancing Debt is incurred that is equal to or greater than the Average Life of the Debt being Refinanced,

(4)          such Refinancing Debt is in 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 fees and expenses, including any premium and defeasance costs) with respect to the Debt being Refinanced, and

(5)          Refinancing Debt shall not include Debt of a Non-Guarantor Subsidiary that refinances Debt of the Parent, the Issuer or a Subsidiary Guarantor.

“ Restricted Payment ” is defined to mean any of the following:

(1)          any dividend or other distribution declared and paid on the Capital Stock in the Parent or on the Capital Stock in any Restricted Subsidiary of the Parent that are held by, or declared and paid to, any Person other than the Parent or a Restricted Subsidiary of the Parent (other than (i) dividends, distributions or payments made solely in Qualified Capital Interests in the Parent and (ii) dividends or distributions payable to the Parent or a Restricted Subsidiary of the Parent or to other holders of Capital Stock of a Restricted Subsidiary on a pro rata basis);

(2)          any payment (including, without limitation, in connection with a merger, consolidation or amalgamation) made by the Parent or any of its Restricted Subsidiaries to purchase, redeem, acquire or retire any Capital Stock in the Parent (including the conversion into, or exchange for, Debt, of any Capital Stock) other than any such Capital Stock owned by the Parent or any Restricted Subsidiary (other than a payment made solely in Qualified Capital Interests in the Parent);

(3)          any payment made by the Parent or any of its Restricted Subsidiaries (other than a payment made solely in Qualified Capital Interests in the Parent) to redeem, repurchase, defease (including an in substance or legal defeasance) or otherwise acquire or retire for value (including pursuant to mandatory repurchase covenants), prior to any scheduled maturity, scheduled sinking fund or mandatory redemption payment, Debt of the Parent or any Subsidiary Guarantor that is subordinate in right of payment to the Notes or Guarantees (excluding any Debt owed to the Parent or any Restricted Subsidiary); except payments of principal and interest in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, within one year of the due date thereof;
 
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(4)          any Investment by the Parent or a Restricted Subsidiary in any Person, other than a Permitted Investment; and

(5)          any designation of a Restricted Subsidiary as an Unrestricted Subsidiary.

“ Restricted Subsidiary ” means any Subsidiary of the Parent (including the Issuer) other than an Unrestricted Subsidiary.

“ Significant Subsidiary ” means any Restricted Subsidiary of the Parent that constitutes a “significant subsidiary” within the meaning set forth in Rule 1-02 of Regulation S-X promulgated by the Commission.

“ Standard Securitization Undertakings ” means representations, warranties, covenants and indemnities entered into by the Parent or any Restricted Subsidiary which are reasonably customary in an accounts receivable securitization transaction as determined in good faith by the Parent, including guarantees by the Parent or any Restricted Subsidiary of any of the foregoing obligations of the Parent or a Restricted Subsidiary.

“ Subsidiary ” of any Person means any corporation, association or other business entity of which more than 50%, by number of votes, of the Voting Stock is at the time directly or indirectly owned by such Person.  Unless otherwise specified herein, each reference to a Subsidiary will refer to a Subsidiary of the Parent, including the Issuer.

“ Subsidiary Guarantor ” means each Restricted Subsidiary of the Parent that executes a supplemental indenture, including in the form set forth in Exhibit C hereto providing its Guarantee pursuant to the terms of this Indenture after the Issue Date.

“ Sumitomo Credit Agreement ” means the credit agreement, dated as of August 25, 2015 (as amended, supplemented or otherwise modified from time to time), among the Issuer, the Parent and the agents and lenders named therein, providing for a term loan facility, which shall provide for borrowings by the Parent, together with all related notes, letters of credit, guarantees, and any other related agreements and instruments executed and delivered in connection therewith, in each case as amended, modified, supplemented, restated, refinanced, refunded or replaced in whole or in part from time to time including by or pursuant to any agreement or instrument that exchanges, extends, refinances, renews, replaces, substitutes or otherwise restructures the maturity of any indebtedness thereunder, or increases the amount of available borrowings thereunder, or adds Subsidiaries of the Parent as additional borrowers or guarantors thereunder, in each case with respect to such agreement or any successor or replacement agreement and whether by the same or any other agent, lender, group of lenders, purchasers, institutional investors or debt holders.

“ Unrestricted Subsidiary ” means:

(1)          any direct or indirect Subsidiary of the Parent (other than the Issuer) which at the time of determination is an Unrestricted Subsidiary (as designated by the Board of Directors of the Parent, as provided below) and

(2)          any Subsidiary of an Unrestricted Subsidiary.
 
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The Board of Directors of the Parent may designate any direct or indirect Subsidiary of the Parent (including any existing Subsidiary and any newly-acquired or newly-formed direct or indirect Subsidiary) (other than the Issuer) to be an Unrestricted Subsidiary unless such Subsidiary or any of its Subsidiaries owns any Capital Stock or Debt of, or owns or holds any Lien on, any property of, the Parent or any  Subsidiary of the Parent (other than any Subsidiary of the Subsidiary to be so designated); provided that

(a)          any Unrestricted Subsidiary must be an entity of which the Capital Stock entitled to cast at least a majority of the votes that may be cast by all Capital Stock having ordinary voting power for the election of directors or other governing body are owned, directly or indirectly, by the Parent,

(b)          such designation complies with Section 4.05 and

(c)          each of
 
                                             (1)         the Subsidiary to be so designated and
 
                                             (2)         its Subsidiaries

has not at the time of designation, and does not thereafter, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable with respect to any Debt pursuant to which the lender has recourse to any of the assets of the Parent or any Restricted Subsidiary.

The Board of Directors of the Parent may designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that immediately after giving effect to such designation no Default or Event of Default shall have occurred and be continuing and either:

                                             (1)         the Parent could incur at least $1.00 of additional Debt pursuant to the Consolidated Fixed Charge Coverage Ratio test described under Section 4.06 or
 
             (2)         the Consolidated Fixed Charge Coverage Ratio for the Parent and the Restricted Subsidiaries on a consolidated basis would be greater than or equal to such ratio for the Parent and the Restricted Subsidiaries on a consolidated basis immediately prior to such designation, in each case on a pro forma basis taking into account such designation.

Any such designation by the Board of Directors of the Parent shall be notified by the Issuer to the Trustee by promptly filing with the Trustee a copy of a resolution of the board of directors of the Issuer giving effect to such designation and an Officers’ Certificate certifying that such designation complied with the foregoing provisions.

1.02.          Section 1.02 “Other Definitions” is hereby amended by adding to the table in its appropriate alphabetical order the term “Successor Guarantor,” which is defined in Section 5.01(c).

1.03.          Section 1.04 “Incorporation by Reference of Trust Indenture Act,” Section 1.05 “Acts of Holders,” Section 2.01 “Form and Dating; Terms,” Section 4.02 “Maintenance of Office or Agency,” Section 7.07 “Compensation and Indemnity,” Section 9.06 “Trustee to Sign Amendments, etc.,” Section 10.02 “Application of Trust Money” and Section 2.3 “Definitive Notes” of Appendix A and Section 9 “Defaults and Remedies” of the Notes are hereby amended by inserting “, the Parent” before each reference to “and the Subsidiary Guarantors”, “or the Subsidiary Guarantors”, “or any Subsidiary Guarantor”, “the Subsidiary Guarantors”, “each Subsidiary Guarantor” and “and any Subsidiary Guarantor” therein.
 
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1.04.          The following sections in Article 4 “Covenants” are hereby amended and restated in their entirety as follows:

ARTICLE 4

COVENANTS

Section 4.03            Provision of Financial Information .

Whether or not required by the Commission, so long as any Notes are outstanding, the Parent will furnish to the Holders, or file electronically with the Commission through the Commission’s Electronic Data Gathering, Analysis and Retrieval System (or any successor system), within the time periods specified in the Commission’s rules and regulations:

(1)          all quarterly and annual financial information that would be required to be contained in a filing by the Parent with the Commission on Forms 10-Q and 10-K if the Parent were required to file such Forms, including a “Management’s discussion and analysis of financial condition and results of operations” and, with respect to the annual information only, a report on the annual financial statements by the Parent’s certified independent accountants; and

(2)          all current reports that would be required to be filed by the Parent with the Commission on Form 8-K if the Parent were required to file such reports.

In addition, whether or not required by the Commission, the Parent will file a copy of all of the information and reports referred to in clauses (1) and (2) above with the Commission for public availability within the time periods specified in the Commission’s rules and regulations (unless the Commission will not accept such a filing) and make such information available to prospective investors. In addition, the Parent has agreed that, for so long as any Notes remain outstanding, it will furnish to the Holders of such Notes and to prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.

Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates). The Trustee shall have no responsibility or liability for the filing, content or timeliness of any such report, information or document other than the report of the Trustee specifically required hereunder.

Section 4.04            Compliance Certificate .

(a)          The Issuer will deliver to the Trustee, within 120 days after the end of each fiscal year ending after the Issue Date, a certificate from the principal executive officer, principal financial officer or principal accounting officer stating that a review of the activities of the Parent and its Restricted Subsidiaries during the preceding fiscal year has been made under the supervision of the signing Officer with a view to determining whether the Issuer, the Parent and each Subsidiary Guarantor have kept, observed, performed and fulfilled their obligations under this Indenture, and further stating, as to such Officer signing such certificate, that to the best of his or her knowledge, the Issuer, the Parent and each Subsidiary Guarantor have kept, observed, performed and fulfilled each and every condition and covenant contained in this Indenture and is not in default in the performance or observance of any of the terms, provisions, covenants and conditions of this Indenture (or, if a Default shall have occurred, describing all such Defaults of which he or she may have knowledge and what action the Issuer, the Parent and each Subsidiary Guarantor are taking or propose to take with respect thereto).
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(b)          When any Default has occurred and is continuing under this Indenture, the Issuer will promptly send to the Trustee an Officers’ Certificate specifying such event, its status and what action the Issuer is taking or proposes to take with respect thereof.

Section 4.05            Limitation on Restricted Payments .

(a)          The Parent will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, make any Restricted Payment unless, at the time of and after giving effect to the proposed Restricted Payment:
 
                                             (i)          no Default shall have occurred and be continuing or will occur as a consequence thereof;
 
                                             (ii)         after giving effect to such Restricted Payment on a pro forma basis, the Parent would be permitted to incur at least $1.00 of Coverage Debt under Section 4.06(a); and
 
             (iii)        after giving effect to such Restricted Payment on a pro forma basis, the aggregate amount of all Restricted Payments made after the Issue Date (excluding (x) Restricted Payments permitted by clauses (2) through (8) of Section 4.05(b) and (y) Restricted Payments permitted by clause (9) of Section 4.05(b) to the extent that the amount available for Restricted Payments under this clause (iii) would be reduced to less than zero as a result of payments made under such clause (9)), shall not exceed the sum (without duplication) of
 
                (A)         50% of the Consolidated Net Income (or, if Consolidated Net Income shall be a deficit, minus 100% of such deficit) of the Parent accrued on a cumulative basis during the period (taken as one accounting period) from the beginning of the fiscal quarter during which the Issue Date occurs and ending on the last day of the fiscal quarter immediately preceding the date of such proposed Restricted Payment, plus
 
                (B)         100% of the aggregate net proceeds (including the fair market value of property other than cash as determined by the Parent in good faith) received by the Parent subsequent to the initial issuance of the Notes either (i) as a contribution to its common equity capital or (ii) from the issuance and sale (other than to a Subsidiary) of its Qualified Capital Interests, including Qualified Capital Interests issued upon the conversion of Debt, Redeemable Capital Interests or preferred stock of the Parent, and from the exercise of options, warrants or other rights to purchase such Qualified Capital Interests (other than, in each case, Capital Stock or Debt sold to a Subsidiary of the Parent and other than Excluded Contributions), plus
 
                (C)          to the extent that any Investment (other than Permitted Investments or Investments in Unrestricted Subsidiaries) that was made on or after the Issue Date is sold for cash or otherwise disposed of, liquidated, redeemed, repurchased or repaid for cash or other assets, or to the extent that the Parent otherwise realizes any proceeds on the sale of such Investment or proceeds representing the return of capital on such Investment, the lesser of (i) the initial amount of such Investment, or (ii) to the extent not otherwise included in the calculation of Consolidated Net Income of the Parent for such period, the net cash return of capital or net fair market value of return of capital as determined by the Parent in good faith with respect to such Investment, less the cost of any such disposition or liquidation, plus
 
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                (D)          to the extent that any Unrestricted Subsidiary of the Parent designated as such on or after the Issue Date is redesignated as a Restricted Subsidiary, the lesser of (i) the fair market value of the Parent’s Investment in such Subsidiary as of the date of such redesignation as determined by the Parent in good faith or (ii) such fair market value as of the date on which such Subsidiary was originally designated as an Unrestricted Subsidiary, plus
          
                                                        (E)          $150.0 million.

(b)         The provisions of Section 4.05(a) will not prohibit:
 
             (1)         the payment of any dividend on Capital Stock in the Parent or a Restricted Subsidiary within 60 days after declaration thereof if at the declaration date such payment was permitted by the provisions of  Section 4.05;
 
            (2)         the purchase, repurchase, redemption, defeasance or other acquisition or retirement of any Qualified Capital Interests of the Parent by conversion into, or by or in exchange for, Qualified Capital Interests, or out of net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Parent) of other Qualified Capital Interests of the Parent;
 
             (3)        the redemption, defeasance, repurchase or acquisition or retirement for value of any Debt of the Parent or a Subsidiary Guarantor that is subordinate in right of payment to the Notes or the applicable Guarantee out of the net cash proceeds of a substantially concurrent issue and sale (other than to a Subsidiary of the Parent) of (x) new subordinated Debt of the Parent or such Subsidiary Guarantor, as the case may be, incurred in accordance with this Indenture or (y) of Qualified Capital Interests of the Parent;
 
             (4)         the purchase, redemption, retirement or other acquisition for value of Capital Stock of the Parent held by employees or former employees of the Parent or any Restricted Subsidiary (or their estates or beneficiaries under their estates) upon death, disability, retirement or termination of employment or alteration of employment status or pursuant to the terms of any agreement under which such Capital Stock was issued; provided, however , that the aggregate cash consideration paid for such purchase, redemption, retirement or other acquisition of such Capital Stock does not exceed $5.0 million in any calendar year; provided further, however , that any unused amounts in any calendar year may be carried forward to one or more future periods subject to a maximum aggregate amount of repurchases made pursuant to this clause (iv) not to exceed $10.0 million in any calendar year; provided, however , that such amount in any calendar year may be increased by an amount not to exceed (A) the cash proceeds received by the Parent or any of its Restricted Subsidiaries from the sale of Qualified Capital Interests of the Parent to employees of the Parent and its Restricted Subsidiaries that occurs after the Issue Date; provided, however , that the amount of such cash proceeds utilized for any such repurchase, retirement, other acquisition or dividend will not increase the amount available for Restricted Payments under clause (iii) of Section 4.05(a); plus (B) the cash proceeds of key man life insurance policies received by the Parent and its Restricted Subsidiaries after the Issue Date ( provided, however , that the Parent may elect to apply all or any portion of the aggregate increase contemplated by the proviso of this clause (4) in any calendar year);
 
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             (5)         repurchase of Capital Stock deemed to occur upon the exercise of stock options, warrants or other convertible or exchangeable securities;
 
             (6)         cash payment, in lieu of issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for the Capital Stock of the Parent or a Restricted Subsidiary;
 
             (7)        the declaration and payment of dividends to holders of any class or series of Redeemable Capital Interests of the Parent or any Restricted Subsidiary issued or incurred in compliance with Section 4.06;
 
             (8)         upon the occurrence of a Change of Control or an Asset Sale, the defeasance, redemption, repurchase or other acquisition of any subordinated Debt pursuant to provisions substantially similar to those described under Section 4.10 and Section 4.11 at a purchase price not greater than 101% of the principal amount thereof (in the case of a Change of Control) or at a percentage of the principal amount thereof not higher than the principal amount applicable to the Notes (in the case of an Asset Sale), plus any accrued and unpaid interest thereon; provided, however , that prior to or contemporaneously with such defeasance, redemption, repurchase or other acquisition, the Issuer has made an Offer to Purchase with respect to the applicable Notes and has repurchased all Notes validly tendered for payment and not withdrawn in connection therewith;
 
             (9)         to the extent no Default in any payment in respect of principal or interest under the Notes or Event of Default has occurred and is continuing or will occur as a consequence thereof, the payment of regular cash quarterly dividends on the Parent’s common stock; provided, however , that in no event shall the amount of dividends paid in any calendar year under this clause (9) exceed $200.0 million;
 
             (10)       Restricted Payments that are made with Excluded Contributions;
 
             (11)      to the extent no Default in any payment in respect of principal or interest under the Notes or an Event of Default has occurred and is continuing or will occur as a consequence thereof, other Restricted Payments not in excess of $50.0 million in the aggregate;
 
             (12)       to the extent no Default in any payment in respect of principal or interest under the Notes or an Event of Default has occurred and is continuing or will occur as a consequence thereof, any Restricted Payment so long as on the date of such Restricted Payment, after giving pro forma effect thereto and to any related transactions as if the same had occurred at the beginning of the Parent’s most recent four consecutive fiscal quarters for which internal financial statements of the Parent are available, the Consolidated Debt Ratio would not exceed 2.50 to 1.00; and
 
             (13)       any Restricted Payment made in connection with the Transactions.

(c)          If any Person in which an Investment is made, which Investment constitutes a Restricted Payment when made, thereafter becomes a Restricted Subsidiary in accordance with this Indenture, all such Investments previously made in such Person shall no longer be counted as Restricted Payments for purposes of calculating the aggregate amount of Restricted Payments pursuant to clause (iii) of Section 4.05(a), in each case to the extent such Investments would otherwise be so counted.

(d)          For purposes of this Section 4.05, if a particular Restricted Payment involves a non-cash payment, including a distribution of assets, then such Restricted Payment shall be deemed to be an amount equal to the cash portion of such Restricted Payment, if any, plus an amount equal to the fair market value of the non-cash portion of such Restricted Payment as determined by the Parent in good faith.
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Section 4.06             Limitation on Debt .

(a)          The Parent will not, and will not permit any of its Restricted Subsidiaries to incur any Debt (including Acquired Debt); provided , however , that the Parent, the Issuer and any Restricted Subsidiary may incur Debt (including Acquired Debt) if, immediately after giving effect to the incurrence of such Debt and the receipt and application of the proceeds therefrom:

             (1)         the Consolidated Fixed Charge Coverage Ratio of the Parent and its Restricted Subsidiaries would be greater than 2.00 to 1.00; and
 
             (2)              no Default shall have occurred and be continuing at the time or as a consequence of the incurrence of such Debt (any Debt incurred pursuant to this provision being herein referred to as “ Coverage Debt ”); provided, however , that the amount of Debt (other than Acquired Debt) that may be incurred or issued pursuant to the foregoing by Non-Guarantor Subsidiaries shall not exceed $100.0 million at any one time outstanding.

(b)          Notwithstanding Section 4.06(a), the Parent and its Restricted Subsidiaries may incur Permitted Debt.

(c)          For purposes of determining any particular amount of Debt under this Section 4.06:

             (1)         Debt outstanding under the Credit Agreement and the Sumitomo Credit Agreement on the Issue Date will at all times be treated as incurred pursuant to clause (1) of the definition of Permitted Debt and shall not be permitted to be reclassified and
 
             (2)        guarantees or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount will not be included.

(d)          Except as provided above, for purposes of determining compliance with this Section 4.06, in the event that an item of Debt meets the criteria of more than one of the types of Debt described above, including any Coverage Debt and any category of Permitted Debt, the Parent, in its sole discretion, shall classify, and from time to time may reclassify, all or any portion of such item of Debt.

(e)          For purposes of determining compliance of any non-U.S. dollar-denominated Debt with this Section 4.06, the amount outstanding under U.S. dollar-equivalent principal amount of Debt denominated in a foreign currency shall at all times be calculated based on the relevant currency exchange rate in effect on the date such Debt was incurred, in the case of any term Debt, or first committed, in the cases of any revolving credit Debt; provided, however , that if such Debt is incurred to Refinance other Debt denominated in the same or different currency, and such Refinancing would cause the applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such Refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such Refinancing Debt does not exceed the principal amount of such indebtedness being Refinanced.
 
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(f)          The accrual of interest, the accretion or amortization of original issue discount and the payment of interest on Debt in the form of additional Debt or payment of dividends on Capital Stock in the forms of additional shares of Capital Stock with the same terms will not be deemed to be an incurrence of Debt or issuance of Capital Stock for purposes of this Section 4.06.

Section 4.07            Limitation on Liens .

(a)          The Parent will not, nor will the Parent permit any Restricted Subsidiary to, issue, assume or guarantee any Debt secured by a Lien upon any Principal Property or upon any shares of stock of any Restricted Subsidiary without effectively providing that the Notes and the Guarantees, together with, if the Parent so determines, any other indebtedness or obligation then existing or thereafter created, ranking equally in right of payment with the Notes or the Guarantees, shall be secured equally and ratably with, or, at the Parent’s option, prior to, such Debt so long as such Debt shall be so secured, except that this restriction will not apply to:

             (1)         Liens existing on the Issue Date;
 
             (2)         Liens affecting property of a Person existing at the time it becomes a Restricted Subsidiary or at the time it is merged into or consolidated with the Parent or a Restricted Subsidiary;
 
             (3)         Liens:

    (i)           on property existing at the time of acquisition thereof,
 
     (ii)          to secure payment of all or part of the purchase price thereof,
 
     (iii)         to secure Debt incurred prior to, at the time of or within 12 months after such acquisition for the purpose of financing all or part of the purchase price thereof, or
 
                                                        (iv)         assumed or incurred in connection with the acquisition of property;

(4)          Liens on property to secure all or part of the cost of repairing, altering, constructing, improving, exploring, drilling or developing such property, or to secure Debt incurred to provide funds for such purpose;

(5)          Liens in connection with non-recourse Debt;
 
            (6)          Liens on current assets or other personal property, other than shares of stock of Subsidiaries, to secure loans maturing not more than one year from the date of the creation thereof or to secure any renewal thereof for not more than one year at any one time;
 
             (7)          Liens which secure indebtedness owing by a Restricted Subsidiary to the Parent or another Restricted Subsidiary of the Parent;
 
             (8)          Liens on property of any Restricted Subsidiary principally engaged in a financing or leasing business; and
 
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             (9)         any extension, renewal or replacement, or successive extensions, renewals or replacements, in whole or in part, of any Lien referred to in the foregoing or of any Debt secured thereby; provided that the principal amount of Debt secured thereby shall not, with respect to Liens referred to in clauses (1) through (4) above, exceed the principal amount of Debt so secured at the time of such extension, renewal or replacement, and that such extension, renewal or replacement Lien shall be limited to all or part of substantially the same property which secured the Lien extended, renewed or replaced, plus improvements on such property.

(b)          Notwithstanding 4.07(a), the Parent and any one or more of its Restricted Subsidiaries may, without securing the Notes and the Guarantees, issue, assume or guarantee Debt secured by Liens which would not be permitted by Section 4.07(a) in an aggregate amount which, together with:
 
             (1)      the aggregate principal amount of all of the Parent’s other Debt and Debt of its Restricted Subsidiaries secured by a Lien upon any Principal Property or upon any shares of stock of any Restricted Subsidiary that would not be permitted to be secured by Liens under Section 4.07(a); and
 
             (2)       the Attributable Debt in respect of Sale and Lease-Back Transactions existing at such time (other than Sale and Lease-Back Transactions in which the property involved would have been permitted to be secured under Section 4.07(a) or the proceeds of which have been applied in accordance with Section 4.08(a)(2) to the retirement of long-term indebtedness);

does not at the time exceed 10% of Consolidated Net Tangible Assets.

(c)          For purposes of this Section 4.07 and Section 4.08, the sale or other transfer of any interest in property of the character commonly referred to as a “production payment,” is not considered Debt secured by a Lien.

Section 4.08            Limitation on Sale and Lease-Back Transactions .

(a)          The Parent will not, nor will the Parent permit any Restricted Subsidiary to, enter into any arrangement with any Person providing for the leasing by the Parent or any Restricted Subsidiary of any Principal Property, except for (x) temporary leases for terms of not more than three years, (y) leasing arrangements between the Parent and a Subsidiary or (z) leasing arrangements between Subsidiaries, title to which property has been or is to be sold or transferred by the Parent or such Restricted Subsidiary to such Person (such transaction, a “ Sale and Lease-Back Transaction ”), unless the proceeds of any such sale are at least equal to the fair value, as determined by the Board of Directors of the Parent, of such property and either:

            (1)     the Parent or such Restricted Subsidiary would be permitted under Section 4.07(a) to secure Debt by a Lien on the Principal Property to be leased in an amount at least equal to the Attributable Debt in respect of such Sale and Lease-Back Transaction without equally and ratably securing the Notes pursuant to Section 4.07; or
 
            (2)          the Parent applies an amount equal to the fair value of the property so leased to the retirement, within 90 days of the effective date of any such Sale and Lease-Back Transaction, of the Issuer’s or the Parent’s long-term indebtedness which ranks senior or equal to the Notes or the related Guarantee (other than indebtedness held by the Parent or any of its Subsidiaries).
 
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For the avoidance of doubt, Sale and Lease-Back Transactions do not include arrangements with governmental bodies entered into for the purpose of financing the purchase price or the cost of constructing or improving the property subject thereto.

(b)          Notwithstanding the provisions of Section 4.08(a), the Parent or any of its Restricted Subsidiaries may enter into any Sale and Lease-Back Transaction which would not be permitted under Section 4.08(a) if the amount of the Attributable Debt in respect of such Sale and Lease-Back Transaction, together with:
 
(1)          all of the Parent’s Debt and Debt of its Restricted Subsidiaries secured by a Lien on Principal Property or shares of stock of any Restricted Subsidiary and not permitted under Section 4.07(a); and
 
            (2)          all other Attributable Debt in respect of Sale and Lease-Back Transactions existing at such time (other than Sale and Lease-Back Transactions in which the property involved would have been permitted to have a Lien in accordance with Section 4.07(a) or the proceeds of which have been applied in accordance with Section 4.08(a)(2) to the retirement of long-term indebtedness);

does not at the time exceed 10% of Consolidated Net Tangible Assets.

Section 4.09            Future Guarantors .

(a)         After the Issue Date, the Parent will cause each Restricted Subsidiary of the Parent (other than the Issuer) that guarantees (i) the Credit Agreement or (ii) any Material Capital Markets Debt issued by the Parent, the Issuer or any Subsidiary Guarantor to, within 45 days of the incurrence of such guarantee, execute and deliver to the Trustee a supplemental indenture to this Indenture, which may be  in the form of Exhibit C hereto pursuant to which such Restricted Subsidiary will guarantee payment of the Notes on the same terms and conditions as those set forth in this Indenture.

(b)          Each Guarantee of a Subsidiary Guarantor shall be released in accordance with the provisions of Section 11.06.

(c)          Any Subsidiary Guarantor that makes a payment under its Guarantee will be entitled upon payment in full of all obligations that are guaranteed under this Indenture to a contribution from each other Subsidiary Guarantor in an amount equal to such other Subsidiary Guarantor’s pro rata portion of such payment based on the respective net assets of all the Subsidiary Guarantors at the time of such payment determined in accordance with GAAP.

Section 4.11             Limitation on Asset Sales .

(a)          The Parent will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless :

(1)          the Parent (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the fair market value of the assets or Capital Stock issued or sold or otherwise disposed of as determined by the Parent in good faith; and
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(2)          except in the case of a Permitted Asset Swap, at least 75% of the consideration received in the Asset Sale by the Parent or such Restricted Subsidiary is in the form of cash or Eligible  Cash Equivalents.

For the purposes of this Section 4.11(a), the following will be deemed to be cash:

           (i)            any liabilities, as shown on the most recent consolidated balance sheet of the Parent or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Guarantee) that are assumed by the transferee of any such assets pursuant to a customary assignment and assumption agreement that releases the Parent or such Restricted Subsidiary from further liability;
 
            (ii)          any securities, notes or other obligations received by the Parent or any such Restricted Subsidiary from such transferee that are converted by the Parent or such Restricted Subsidiary into cash within 180 days of their receipt to the extent of the cash received in that conversion; and
 
            (iii)         any Designated Non-cash Consideration received by the Parent or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value as determined by the Parent in good faith, taken together with all other Designated Non-cash Consideration received pursuant to this clause (iii) that is at that time outstanding, not to exceed $50.0 million 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)          Within 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Parent (or the applicable Restricted Subsidiary, as the case may be) may apply such Net Cash Proceeds at its option:

            (A)        to permanently repay (a) Debt under the Credit Agreement and, if the obligation repaid is revolving credit Debt, to correspondingly reduce commitments with respect thereto and/or (b) other unsecured Debt ranking pari passu in right of payment with the Notes or the Parent’s Guarantee of the Notes (provided that if the Parent shall so reduce obligations under such other unsecured Debt, other than the Notes, the Parent will (x) equally and ratably reduce obligations under the Notes under any applicable optional redemption provisions or by open market purchases or (y) make an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders to purchase at a purchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest and additional interest, if any, the pro rata principal amount of Notes);
 
            (B)         to acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes a Restricted Subsidiary of the Parent;
 
             (C)        to make a capital expenditure in or that is used or useful in a Permitted Business or to make expenditures for maintenance, repair or improvement of existing properties and assets;
 
             (D)        to acquire other assets (other than inventory) that are used or useful in a Permitted Business;
 
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             (E)        to repay or repurchase Debt secured by the assets of the Parent or any Restricted Subsidiaries; or
 
             (F)        any combination of the foregoing.

(c)          Any Net Cash Proceeds from Asset Sales that are not applied, invested or subject to an offer to repurchase as provided in Section 4.11(b) will constitute “ Excess Proceeds .” When the aggregate amount of Excess Proceeds with respect to the Notes exceeds $50.0 million, the Issuer will, within 30 days, make an offer to purchase to all Holders of such Notes (an “ Asset Sale Offer ”), and to all holders of other Debt containing provisions similar to those set forth in this Indenture with respect to assets sales (including, without limitation, the 2023 Notes), to purchase the maximum aggregate principal amount of such Notes and such other Debt that may be purchased out of the Excess Proceeds. The offer price for the Notes in any Asset Sale Offer will be equal to 100% of the principal amount plus accrued and unpaid interest to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer in respect of such Notes, the Issuer may use those funds for any purpose not otherwise prohibited by this Indenture and they will no longer constitute Excess Proceeds. If the aggregate principal amount of Notes and other Debt tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Excess Proceeds will be allocated between such Notes and such other Debt based on the principal amount (or accreted value, if applicable) of such Notes and such other Debt tendered and the Trustee will select the Notes to be purchased on a pro rata basis among all such Notes tendered (subject to DTC procedures). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.

(d)         The Issuer will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of any Notes as a result of an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale Offer provisions of the Notes, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Asset Sale Offer provisions of the Notes by virtue of such conflict.

Section 4.12             Effectiveness of Covenants .

(a)          Following the first day (such date, the “ Termination Date ”):

             (1)         the Notes have a rating of Investment Grade from both S&P and Moody’s and
 
             (2)         no Default has occurred and is continuing under this Indenture, the Issuer, the Parent and its Restricted Subsidiaries shall no longer be subject to the provisions of Sections 4.05, 4.06, 4.09 and 4.11.

(b)          In the event that the Notes’ credit rating is downgraded from Investment Grade by any Rating Agency, the provisions of Sections 4.05, 4.06, 4.09 and 4.11 will not thereafter be reinstated.

(c)          Promptly following the Termination Date, the Issuer shall provide an Officers’ Certificate to the Trustee regarding such occurrence. The Trustee shall have no obligation to independently determine or verify if a Termination Date has occurred or notify the Holders of the Termination Date. The Trustee may provide a copy of such Officers’ Certificate to any Holder upon request.
 
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1.05           Article 5 “Successors” is hereby amended and restated in its entirety as follows:

ARTICLE 5

SUCCESSORS

Section 5.01             Consolidation, Merger, Conveyance, Transfer or Lease

(a)          The Issuer will not merge or consolidate with any other Person or sell or convey all or substantially all of its assets to any Person, unless :

             (1)         the successor Person (if other than the Issuer) (the “ Successor Issuer ”) shall be a corporation organized under the laws of the United States or any state thereof and shall expressly assume (a) the due and punctual payment of the principal of and premium, if any, and interest on all the Notes, according to their tenor, and the due and punctual performance and observance of all of the covenants and conditions under this Indenture to be performed or observed by the Issuer, by supplemental indenture satisfactory in form to the Trustee, executed and delivered to the Trustee by such Person and (b) all obligations of the Issuer under the Registration Rights Agreement, by a written instrument satisfactory in form to the parties thereto, executed and delivered to such parties by such Person;
 
             (2)         the Successor Issuer shall not, immediately after such merger or consolidation, or such sale or conveyance, be in default in the performance of any such covenant or condition;
 
             (3)         the Parent and each Subsidiary Guarantor (unless the Parent or such Subsidiary Guarantor is the other party to the transactions described above, in which case the preceding clause (1) shall apply) shall have by supplemental indenture confirmed that the applicable Guarantee shall apply to such Successor Issuer’s obligations under this Indenture and the Notes and shall have by written agreement confirmed that its obligations under the Registration Rights Agreement shall continue to be in effect; and
 
             (4)         the Issuer shall have provided the Trustee with an Opinion of Counsel and Officers’ Certificate each stating that such merger or consolidation, or such sale or conveyance, and such supplemental indenture, if any, comply with this Indenture.

(b)          Subject to the limitations set forth in this Indenture, the Successor Issuer will succeed to, and be substituted for, the Issuer under this Indenture, the Notes and the Registration Rights Agreement.

(c)          the Parent will not merge or consolidate with any other Person or sell or convey all or substantially all of its assets to any Person, unless:

             (1)         the successor Person (if other than the Parent) (the “ Successor Guarantor ”) shall be a corporation organized under the laws of the United States or any state thereof and shall expressly assume by supplemental indenture satisfactory in form to the Trustee, executed and delivered to the Trustee by such Person all the obligations of the Parent under the Guarantee, this Indenture and the Registration Rights Agreement;
 
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             (2)         the Successor Guarantor shall not, immediately after such merger or consolidation, or such sale or conveyance, be in default in the performance of any such covenant or condition; and
 
             (3)         the Successor Guarantor shall have provided the Trustee with an Opinion of Counsel and Officers’ Certificate each stating that such merger or consolidation, or such sale or conveyance, and such supplemental indenture, if any, comply with this Indenture.

(d)         The Parent will not permit any Subsidiary Guarantor to merge or consolidate with any other Person or sell or convey all or substantially all of its assets to any Person, unless:

             (1)         (A)        the successor Person (if other than the Parent, the Issuer or such Subsidiary Guarantor) (the “ Successor Subsidiary Guarantor ”) shall expressly assume by supplemental indenture satisfactory in form to the Trustee, executed and delivered to the Trustee by such Person all the obligations of such Subsidiary Guarantor under the applicable Guarantee and this Indenture;

             (B)          the Successor Subsidiary Guarantor shall not, immediately after such merger or consolidation, or such sale or conveyance, be in default in the performance of any such covenant or condition; and
 
             (C)          the Successor Subsidiary Guarantor shall have provided the Trustee with an Opinion of Counsel and Officers’ Certificate confirming compliance with this Indenture; or

             (2)          the merger, consolidation, sale or conveyance complies with Section 4.11.

(e)          Notwithstanding anything in the foregoing provisions of this Section 5.01 to the contrary, this Section 5.01 shall not apply to the transactions contemplated by the Separation Agreement or by the Merger Agreement.

Section 5.02            Successor Entity Substituted .

Upon any merger, consolidation or sale or conveyance of all or substantially all of the assets of the Parent, any Subsidiary Guarantor or the Issuer, as the case may be, in accordance with Section 5.01, the Parent, such Subsidiary Guarantor or the Issuer, as the case may be, will be released from its obligations under this Indenture, the Notes, the Guarantees and the Registration Rights Agreement, as applicable, and the Successor Issuer, the Successor Guarantor or the Successor Subsidiary Guarantor, as the case may be, will succeed to, and be substituted for, and may exercise every right and power of, the Parent, such Subsidiary Guarantor or the Issuer, as the case may be, under this Indenture, the Notes, the Registration Rights Agreement and the Guarantees, as applicable.

1.06          Section 6.01 “Events of Default” is hereby amended and restated in its entirety as follows:

Section 6.01            Events of Default .

Each of the following is an “ Event of Default ”:
 
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    (1)          default in the payment in respect of the principal of, or premium, if any, on any Note when due and payable (whether at Stated Maturity or upon repurchase, acceleration,  optional redemption or otherwise);

            (2)          default in the payment of any interest (including Additional Interest (as required by the Registration Rights Agreement)) upon any Note when it becomes due and payable, and continuance of such default for a period of 30 days;
 
            (3)          default in the performance, or breach, of any covenant or agreement of the Parent or any Restricted Subsidiary in this Indenture (other than a covenant or agreement a default in which performance or which breach is specifically dealt with in clauses (1) or (2) above), and continuance of such default or breach for a period of 60 days after written notice thereof has been given to the Issuer by the Trustee or to the Issuer and the Trustee by the Holders of at least 25% in aggregate principal amount of the outstanding Notes ( provided that, and without limiting the foregoing in this clause (3), in the case of a default or breach of any covenant or agreement described under Section 4.03, no Event of Default shall occur (and any such default or breach shall be deemed to not have occurred for all purposes under this Indenture) with respect to any failure to furnish or file any information or report required thereunder if the Parent files or furnishes such information or report within 120 days after the Parent was required (or would have been required) to file the same pursuant to the Commission’s rules and regulations);
 
            (4)          the applicable Guarantee ceases to be in full force and effect (except as contemplated by this Indenture) or is declared null and void in a judicial proceeding or the Parent or a Subsidiary Guarantor denies in writing or disaffirms in writing its obligations under this Indenture or Guarantee, other than by reason of the termination of this Indenture or the release of such Guarantee in accordance with the terms of this Indenture;
 
            (5)          the Parent or a Significant Subsidiary shall (i) voluntarily commence any proceeding or file any petition seeking relief under Title 11 of the United States Code or any other federal or state bankruptcy, insolvency or similar law, (ii) consent to the institution of, or fail to controvert in a timely and appropriate manner, any such proceeding or the filing of any such petition, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator or similar official for the Parent or a Significant Subsidiary or for a substantial part of its property, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors, (vi) admit in writing its inability or fail generally to pay its debts as they become due or (vii) take corporate action for the purpose of effecting any of the foregoing; or
 
            (6)          the entry of an order or decree by a court having competent jurisdiction in the premises for (i) relief in respect of the Parent or a Significant Subsidiary or a substantial part of the property of the Parent or a Significant Subsidiary, under Title 11 of the United States Code or any other federal or state bankruptcy, insolvency or similar law, (ii) the appointment of a receiver, trustee, custodian, sequestrator or similar official for the Parent or a Significant Subsidiary or for a substantial part of the property of the Parent or a Significant Subsidiary or (iii) the winding-up or liquidation of the Parent or a Significant Subsidiary; and such order or decree shall continue unstayed and in effect for 60 days.

1.07           Section 6.02 “Acceleration” is hereby amended and restated in its entirety as follows:

Section 6.02            Acceleration .

(a)          If an Event of Default (other than an Event of Default described in clauses (5) and (6) of Section 6.01) with respect to the Parent or the Issuer occurs and is continuing, then and in every such case, unless the principal of all the Notes have already become due and payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount of the then outstanding Notes may declare the principal of, premium, if any, and accrued and unpaid interest on the Notes to be due and payable immediately by a notice in writing to the Issuer (and to the Trustee if given by such Holders).  Upon such declaration, such principal, premium, if any, and accrued and unpaid interest, if any, will be due and payable.
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(b)          If, at any time after the principal amount of the Notes shall have been so declared to be immediately due and payable, and before any judgment or decree for the payment of the moneys due on account of such declaration shall have been obtained or entered, all defaults under this Indenture, other than the nonpayment of principal of or premium, if any, or accrued interest on the Notes which shall have become due by acceleration shall have been remedied—then and in every such case the Holders of a majority in aggregate principal amount of the Notes then outstanding, by written notice to the Issuer and to the Trustee, may waive all defaults and rescind and annul such declaration and its consequences; but no such waiver or rescission and annulment shall extend or shall, affect any subsequent default, or shall impair any right consequent thereon.

(c)          The Trustee may withhold from Holders notice of any Default (except any Default in the payment of principal of, premium, if any, or interest on the Notes) if the Trustee determines that withholding notice is in the interests of such Holders to do so.

(d)          In case an Event of Default described in clauses (5) or (6) of Section 6.01 with respect to the Parent or the Issuer occurs, the principal of, premium, if any, and accrued and unpaid interest, if any, on all the then outstanding Notes will ipso facto become immediately due and payable without any declaration or other act on the part of the Trustee or any Holders.

1.08           Section 6.09 “Restoration of Rights and Remedies” is hereby amended as follows:

(i)           Before the reference to “the Subsidiary Guarantors”, “the Parent,” is inserted.

1.09           Section 6.12 “Trustee May File Proofs of Claim” is hereby amended as follows:

(i)              Before the reference to “the Subsidiary Guarantors”, “the Parent and” is added.

1.10           Section 6.13 “Priorities” is hereby amended as follows:

(i)           Before the reference to “a Subsidiary Guarantor” in Section 6.13(3), “the Parent or” is added.

1.11           Section 7.02 “Rights of Trustee” is hereby amended as follows:

(i)           After each reference to “the Issuer “ in Section 7.02(e), “, the Parent” is added.

1.12          Section 8.02 “Defeasance and Discharge” is hereby amended and restated in its entirety as follows:

Section 8.02             Defeasance and Discharge .

(a)          Upon the Issuer’s exercise under Section 8.01 of the option applicable to this Section 8.02, the Issuer, the Parent and the Subsidiary Guarantors shall, subject to the satisfaction of the conditions set forth in Section 8.04, be deemed to have been discharged from their obligations with respect to the Indenture, all outstanding Notes and Guarantees on the date the conditions set forth below are satisfied (“ Defeasance ”).  For this purpose, Defeasance means that the Issuer shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes, which shall thereafter be deemed to be “outstanding” only for the purposes of Section 8.05 and the other Sections of this Indenture referred to in clauses (1) through (5) below, and to have satisfied all of its other obligations under such Notes and this Indenture, including that of the Parent and the Subsidiary Guarantors (and the Trustee, on demand of and at the expense of the Issuer, shall execute proper instruments acknowledging the same), except for the following provisions which shall survive until otherwise terminated or discharged hereunder:

            (1)          the rights of Holders to receive payments in respect of the principal of and premium, if any, and interest on the Notes when such payments are due;
 
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             (2)         the Issuer’s obligations with respect to the Notes concerning issuing temporary Notes, registration of Notes, mutilated, destroyed, lost or stolen Notes and the maintenance of an office or agency for payment and money for security payments held in trust;
 
             (3)         the rights, powers, trusts, duties and immunities of the Trustee;
 
             (4)         the Issuer’s right of optional redemption pursuant to Section 3.07; and
 
             (5)         this Section 8.02.

(b)          Following the Issuer’s exercise of its Defeasance option, payment of the Notes may not be accelerated because of an Event of Default.

(c)           Subject to compliance with this Article 8, the Issuer may exercise its option under this Section 8.02 notwithstanding the prior exercise of its option under Section 8.03.

1.13           Section 8.03 “Covenant Defeasance” is hereby amended and restated in its entirety as follows:

Section 8.03            Covenant Defeasance .

Upon the Issuer’s exercise under Section 8.01 of the option applicable to this Section 8.03, the Issuer, the Parent and the Subsidiary Guarantors shall, subject to the satisfaction of the conditions set forth in Section 8.04, be released from their obligations under the covenants contained in Sections 3.09, 4.03, 4.05, 4.06, 4.07, 4.08, 4.09, 4.10 and 4.11 with respect to the outstanding Notes, and the Subsidiary Guarantors shall be deemed to have been discharged from their obligations with respect to all Guarantees (other than the Guarantee of the Parent), on and after the date the conditions set forth in Section 8.04 are satisfied (“ Covenant Defeasance ”), and the Notes shall thereafter be deemed not “outstanding” for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed “outstanding” for all other purposes hereunder (it being understood that such Notes shall not be deemed outstanding for accounting purposes).  For this purpose, Covenant Defeasance means that, with respect to this Indenture and the outstanding Notes, the Issuer may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event of Default under Section 6.01, but, except as specified above, the remainder of this Indenture, the Notes and the Guarantee of the Parent shall be unaffected thereby.  In addition, upon the Issuer’s exercise under Section 8.01 of the option applicable to this Section 8.03, subject to the satisfaction of the conditions set forth in Section 8.04, an Event of Default specified in Section 6.01(3) (only with respect to covenants that are released as a result of such Covenant Defeasance) and 6.01(4), (5) (solely with respect to the Parent or any Significant Subsidiary) and (6) (solely with respect to the Parent or any Significant Subsidiary) will no longer constitute an Event of Default.
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1.14           Section 8.04 “Conditions to Legal or Covenant Defeasance” is hereby amended as follows:

(i)           Before each reference to “the Issuer” in Section 8.04(a)(5), “the Parent,” is added.

1.15           Section 8.07 “Reinstatement” is hereby amended as follows:

(i)           After the reference to “the Issuer’s”, “, the Parent’s” is added.

1.16           Section 9.01 “Without Consent of Holders” is hereby amended and restated in its entirety as follows:

Section 9.01            Without Consent of Holders .

(a)          Notwithstanding Section 9.02, without the consent of any Holder, the Issuer, the Parent and the Trustee may, at any time and from time to time, amend or supplement this Indenture:

             (1)         to evidence the succession of another Person to the Parent, the Issuer or a Subsidiary Guarantor and the assumption by any such successor of the covenants of the Parent, the Issuer or such Subsidiary Guarantor, as applicable, under this Indenture, the Notes and the Guarantees thereof;
 
             (2)         to add to the covenants of the Parent, the Issuer and the Subsidiary Guarantors for the benefit of the applicable Holders, or to surrender any right or power herein conferred upon the Parent, the Issuer and the Subsidiary Guarantors;
 
             (3)         to add additional Events of Default;
 
            (4)          to provide for uncertificated Notes in addition to or in place of the certificated Notes;
 
             (5)         to evidence and provide for the acceptance of appointment under this Indenture by a successor Trustee; provided that the successor Trustee is otherwise qualified and eligible to act as such under the terms of this Indenture;
 
             (6)         to provide for or confirm the issuance of Additional Notes in accordance with the terms of this Indenture;
 
             (7)         to add a Subsidiary Guarantor in accordance with this Indenture or release (a) the Parent in accordance with Article V or (b) a Subsidiary Guarantor from its Guarantee when permitted by the terms of this Indenture;
 
             (8)         to cure any ambiguity, defect, omission, mistake or inconsistency;
 
             (9)         to make any other provisions with respect to matters or questions arising under this Indenture; provided , however , that such actions pursuant to this clause (9) shall not adversely affect the interests of the Holders in any material respect, as determined in good faith by the Board of Directors of the Parent;
 
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              (10)        to provide for the issuance of Exchange Notes, which shall be treated, together with any outstanding Notes, as a single class of securities;
 
             (11)       to conform the text of this Indenture or the Notes to any provision of the “Description of notes” section of the Offering Memorandum to the extent that the Trustee has received an Officers’ Certificate stating that such text constitutes an unintended conflict with the description of the corresponding provision in the “Description of notes” section of the Offering Memorandum; or
 
             (12)       to effect or maintain the qualification of this Indenture under the Trust Indenture Act.

Upon the request of the Issuer subject to the terms hereof, and upon receipt by the Trustee of the documents described in Section 12.04, the Trustee shall join with the Issuer, the Parent and the Subsidiary Guarantors in the execution of any amended or supplemental indenture authorized or permitted by the terms of this Indenture and to make any further appropriate agreements and stipulations that may be therein contained, but the Trustee shall not be obligated to enter into such amended or supplemental indenture that affects its own rights, duties or immunities under this Indenture or otherwise.

1.17           Section 9.02           “With Consent of Holders” is hereby amended and restated in its entirety as follows:

Section 9.02             With Consent of Holders .

(a)          Except as provided in Section 9.01 and this Section 9.02, with the consent of the Holders of not less than a majority in aggregate principal amount of the then outstanding Notes, the Parent, the Issuer and the Trustee may amend or supplement this Indenture for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture, or of the Notes or the related Guarantees, or of modifying in any manner the rights of the Holders under this Indenture, including the definitions herein.  Section 2.08 and Section 2.09 shall determine which Notes are considered to be “outstanding” for the purposes of this Section 9.02.

(b)          Without the consent of each affected Holder, an amendment, supplement or waiver under this Section 9.02 may not (with respect to any Notes held by a non-consenting Holder):

            (1)         change the Stated Maturity of any Note or of any installment of interest on any Note, or reduce the amount payable in respect of the principal thereof or the rate of interest thereon or any premium payable thereon, or reduce the amount that would be due and payable on acceleration of the maturity thereof, or change the place of payment where, or the coin or currency in which, any Note or any premium or interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof, or change the date on which any Notes may be subject to redemption or reduce the redemption price therefor;
 
             (2)         reduce the percentage in aggregate principal amount of the then outstanding Notes, the consent of whose Holders is required for any such amendment or supplement, or the consent of whose Holders is required for any waiver of compliance with covenants relating to the payment of principal of or premium, if any, or interest on the Notes or related defaults or Events of Default and their consequences (except with respect to a rescission of acceleration of the Notes by the Holders of a majority in aggregate principal amount of the Notes then outstanding, and a waiver of the Event of Default under Section 6.01(1) or 6.01(2) that resulted from such acceleration) provided for in this Indenture;
 
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             (3)         modify the obligations of the Issuer to make offers to purchase upon a Change of Control if such modification was done after the occurrence of the related Change of Control;
 
             (4)         modify or change any provision of this Indenture affecting the ranking of the Notes in a manner adverse to the applicable Holders; or
 
             (5)         modify any of the provisions of this Section 9.02(b) or provisions relating to waiver of compliance with covenants relating to the payment of principal of or premium, if any, or interest on the Notes or related defaults or Events of Default and their consequences (except with respect to a rescission of acceleration of the Notes by the Holders of a majority in aggregate principal amount of the Notes then outstanding, and a waiver of the Event of Default under Section 6.01(1) or 6.01(2) that resulted from such acceleration), except to increase any such percentage required for such actions or to provide that such other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each outstanding Note issued thereunder that is affected thereby;
 
             (c)         Upon the request of the Issuer, and upon the filing with the Trustee of evidence reasonably satisfactory to the Trustee of the consent of the Holders as aforesaid, and upon receipt by the Trustee of the documents described in Section 7.02 and Section 12.04, the Trustee shall, subject to the terms hereof, join with the Issuer , the Parent and the Subsidiary Guarantors in the execution of such amended or supplemental indenture unless such amended or supplemental indenture directly affects the Trustee’s own rights, duties or immunities under this Indenture, in which case the Trustee may, but shall not be obligated to, enter into such amended or supplemental indenture.

(d)          It shall not be necessary for the consent of the Holders under this Section 9.02 to approve the particular form of any proposed amendment, supplement or waiver.  It shall be sufficient if such consent approves the substance of such proposed amendment or supplement.  A consent to any amendment, supplement or waiver under this Indenture by any Holder given in connection with a tender of such Holder’s Notes will not be rendered invalid by such tender.

(e)          A consent to any amendment, supplement or waiver of this Indenture or the Notes or the Guarantee by any Holder given in connection with a tender of such Holder’s Notes will not be rendered invalid by such tender.

1.18           Section 10.01 “Satisfaction and Discharge” is hereby amended and restated in its entirety as follows:

Section 10.01          Satisfaction and Discharge .

(a)          This Indenture will be discharged, and will cease to be of further effect as to all Notes, when either:

             (1)         all Notes theretofore authenticated and delivered have been delivered to the Trustee for cancellation; or
 
             (2)         (A) all such Notes not theretofore delivered to the Trustee for cancellation have become due and payable or will become due and payable within one year or are to be called for redemption within one year (a “ Discharge ”) under irrevocable arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Issuer, and the Issuer has irrevocably deposited or caused to be deposited with the Trustee funds in an amount sufficient to pay and discharge the entire indebtedness on the Notes, not theretofore delivered to the Trustee for cancellation, for principal of, premium, if any, and accrued interest to the Stated Maturity or date fixed for redemption;
 
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             (B)        the Issuer, the Parent or the applicable Subsidiary Guarantor has paid or caused to be paid all other sums then due and payable under this Indenture by the Issuer with respect to the Notes;
 
             (C)        the deposit will not result in a breach or violation of, or constitute a default under, any instrument (other than this Indenture) to which the Issuer, the Parent or any Subsidiary Guarantor is a party or by which the Issuer, the Parent or the applicable Subsidiary Guarantor is bound;
 
             (D)        the Issuer has delivered irrevocable instructions to the Trustee under this Indenture to apply the deposited money toward the payment of the Notes at maturity or on the redemption date, as the case may be; and
 
             (E)        the Issuer has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel each stating that all conditions precedent under this Indenture relating to the Discharge have been complied with.

(b)          Notwithstanding the satisfaction and discharge of this Indenture, if money shall have been deposited with the Trustee pursuant to subclause (A) of clause (2) of Section 10.01(a), the provisions of Section 10.02 and Section 8.06 shall survive.

1.19           Article 11 “Guarantees” is hereby amended and restated in its entirety as follows:

ARTICLE 11

GUARANTEES

Section 11.01          Guarantee .

(a)          Subject to this Article 11, each of the Parent and the Subsidiary Guarantors hereby, jointly and severally, irrevocably, fully and unconditionally guarantees, on a senior unsecured basis, to each Holder and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Issuer hereunder or thereunder, that: (1) the principal, premium, if any, and interest on the Notes shall be promptly paid in full when due, whether at Stated Maturity, by acceleration, redemption or otherwise, and interest on the overdue principal and interest on the Notes, if any, if lawful, and all other obligations of the Issuer to the Holders or the Trustee hereunder or under the Notes shall be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (2) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise (the obligations so guaranteed, collectively, the “ Guaranteed Obligations ”).  Failing payment by the Issuer when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Parent and the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately.  Each of the Parent and Subsidiary Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.

(b)         The Parent and the Subsidiary Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, the recovery of any judgment against the Issuer, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor.  The Parent and each Subsidiary Guarantor hereby waive diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuer, any right to require a proceeding first against the Issuer, protest, notice and all demands whatsoever and covenants that this Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture, or pursuant to Section 11.06.
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(c)          Each of the Parent and the Subsidiary Guarantors also agrees, jointly and severally, to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) Incurred by the Trustee or any Holder in enforcing any rights under this Section 11.01.

(d)          If any Holder or the Trustee is required by any court or otherwise to return to the Issuer, the Parent, the Subsidiary Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to the Issuer, the Parent or the Subsidiary Guarantors, any amount paid either to the Trustee or such Holder, this Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect.

(e)          The Parent and each Subsidiary Guarantor agree that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Guaranteed Obligations until payment in full of all Guaranteed Obligations.  The Parent and each Subsidiary Guarantor further agree that, as between the Parent and the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (1) the maturity of the Guaranteed Obligations may be accelerated as provided in Article 6 for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations, and (2) 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 the Parent and the Subsidiary Guarantors for the purpose of this Guarantee.  The Parent and the Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor or Parent, as the case may be, so long as the exercise of such right does not impair the rights of the Holders under the Guarantees.

(f)           Each Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Issuer for liquidation or reorganization, should the Issuer become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Issuer’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes or the Guarantees, whether as a “voidable preference,” “fraudulent transfer” or otherwise, all as though such payment or performance had not been made.  In the event that any payment or any part thereof, is rescinded, reduced, restored or returned, the Notes shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.

(g)          In case any provision of any Guarantee shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

(h)          Each payment to be made by the Parent or a Subsidiary Guarantor in respect of its Guarantee shall be made without set-off, counterclaim, reduction or diminution of any kind or nature.

Section 11.02          Limitation on Parent and Subsidiary Guarantor Liability .

Each Subsidiary Guarantor and the Parent, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Guarantee of such Subsidiary Guarantor and the Parent not constitute a fraudulent conveyance or a fraudulent transfer for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to any Guarantee.  To effectuate the foregoing intention, the Trustee, the Holders, the Parent and the Subsidiary Guarantors hereby irrevocably agree that the obligations of each Subsidiary Guarantor and the Parent shall be limited to the maximum amount as will, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Subsidiary Guarantor or the Parent that are relevant under such laws and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Subsidiary Guarantor or the Parent in respect of the obligations of such other Subsidiary Guarantor or the Parent under this Article 11, result in the obligations of such Subsidiary Guarantor or the Parent under its Guarantee not constituting a fraudulent conveyance or fraudulent transfer under applicable law.  Each Subsidiary Guarantor and the Parent that makes a payment under its Guarantee will be entitled upon payment in full of all Guaranteed Obligations under this Indenture to a contribution from each other Subsidiary Guarantor or the Parent, as the case may be, in an amount equal to such other Subsidiary Guarantor’s or the Parent’s pro rata portion of such payment based on the respective net assets of all the Subsidiary Guarantors and the Parent at the time of such payment, determined in accordance with GAAP.
 
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Section 11.03           Execution and Delivery .

(a)          To evidence its Guarantee set forth in Section 11.01, each Subsidiary Guarantor and the Parent hereby agree that this Indenture or a supplemental indenture to this Indenture shall be executed on behalf of such Subsidiary Guarantor and the Parent, as the case may be, by an Officer or person holding an equivalent title.

(b)          Each Subsidiary Guarantor and the Parent hereby agree that its Guarantee set forth in Section 11.01 shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Guarantee on the Notes.

(c)          If an Officer whose signature is on this Indenture or a supplemental indenture to this Indenture no longer holds that office at the time the Trustee authenticates the Note, the Guarantees shall be valid nevertheless.

(d)          The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Guarantee set forth in this Indenture on behalf of the Subsidiary Guarantors and the Parent, as the case may be.

Section 11.04          Subrogation .

Each Subsidiary Guarantor and the Parent shall be subrogated to all rights of Holders against the Issuer in respect of any amounts paid by any Subsidiary Guarantor or the Parent, as the case may be, pursuant to the provisions of Section 11.01; provided that, if an Event of Default has occurred and is continuing, no Subsidiary Guarantor or the Parent shall be entitled to enforce or receive any payments arising out of, or based upon, such right of subrogation until all amounts then due and payable by the Issuer under this Indenture or the Notes shall have been paid in full.

Section 11.05          Benefits Acknowledged .

Each Subsidiary Guarantor and the Parent acknowledge that it will receive direct and indirect benefits from the financing arrangements contemplated by this Indenture and that the guarantee and waivers made by it pursuant to its Guarantee are knowingly made in contemplation of such benefits.
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Section 11.06          Release of Guarantees

(a)          A Guarantee by a Subsidiary Guarantor shall be automatically and unconditionally released and discharged, and no further action by such Subsidiary Guarantor, the Issuer or the Trustee shall be required for the release of such Subsidiary Guarantor’s Guarantee, upon:

             (1) (i)          upon the sale or other disposition (including by way of a consolidation or merger) of such Subsidiary Guarantor;
 
             (ii)              upon the sale or disposition of all or substantially all assets of such Subsidiary Guarantor;
 
             (iii)              at such time as such Subsidiary Guarantor no longer guarantees any (i) Credit Agreement or (ii) Material Capital Markets Debt of the Parent, the Issuer or any Subsidiary Guarantor;
 
             (iv)             upon defeasance of the Notes, as provided under Article 8;
 
             (v)              at such time as such Subsidiary Guarantor is no longer a Restricted Subsidiary; or
 
             (vi)              as described under Article 9

in the case of Section 11.06(a)(1)(i) and (ii), other than to the Parent or a Restricted Subsidiary of the Parent; and

            (2)         such Subsidiary Guarantor delivering to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for in this Indenture relating to such release have been complied with.

(b)          At the written request of the Issuer, the Trustee shall execute and deliver any documents reasonably required in order to evidence such release, discharge and termination in respect of the applicable Guarantee.

1.20          Section 12.02         “Notices” is hereby amended as follows:

(i)           After the first and last references to “the Issuer,” in Section 12.02(a)  “the Parent,” is added.

(ii)          After the reference to “the Issuer” in Section 12.02(a) immediately prior to the notice information for the Issuer, “, the Parent” is added.

1.21           Section 12.03 “Communication by Holders with Other Holders”  is hereby amended as follows:

(i)           After the reference to “the Issuer,” “the Parent,” is added.

1.22           Section 12.04 “Certificate and Opinion as to Conditions Precedent” is hereby amended as follows:

(i)          After each reference to “the Issuer”, “, the Parent” is added.
 
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1.23           Section 12.07         “No Personal Liability of Directors, Officers, Employees, Members, Partners and Stockholders” is hereby amended as follows:

(i)           After the second reference to “or any Subsidiary Guarantor”, “, the Parent” is added.

(ii)          After the first and last  reference to “Subsidiary Guarantor”, “or the Parent” is added.

1.24           Section 12.09         “Waiver of Jury Trial” is hereby amended as follows:

(i)           After the reference to “THE ISSUER”, “, THE PARENT” is added.

1.25           Section 12.12         “Successors” is hereby amended as follows:

(i)              After the reference to “Subsidiary Guarantor”, “and the Parent” is  added.

1.26           Section 12.19         “Qualification of Indenture” is hereby amended as follows:

(i)           After each reference to “the Issuer”, “, the Parent” is added.

Section 2.                 Application of Supplemental Indenture .

The Base Indenture, as supplemented by this First Supplemental Indenture, is in all respects ratified and confirmed.  This First Supplemental Indenture shall be deemed part of the Base Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby.

Section 3.                 Governing Law .

THIS FIRST SUPPLEMENTAL INDENTURE WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

Section 4.                 Waiver of Jury Trial .

EACH OF THE ISSUER, THE PARENT AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS FIRST SUPPLEMENTAL INDENTURE OR THE TRANSACTIONS CONTEMPLATED HEREBY.

Section 5.                Successors .

All agreements of the Issuer, the Parent and the Trustee in this First Supplemental Indenture shall bind their successors.

Section 6.                 Counterpart Originals .

The parties may sign any number of copies of this First Supplemental Indenture.  Each signed copy shall be an original, but all of them together represent the same agreement.
 
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Section 7.                Trustee Makes No Representation .

The Trustee makes no representation as to the validity or sufficiency of this First Supplemental Indenture.


[Signature Page Follows]
 
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                IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be duly executed as of the day and year first above written.
 
  BLUE CUBE SPINCO INC., as Issuer  
       
 
By:
/ s/ Stephen C. Curley  
    Name:  Stephen C. Curley  
    Title:    Vice President & Treasurer  
       

 
  OLIN CORPORATION, as Parent  
       
 
By:
/ s/ Stephen C. Curley  
    Name:  Stephen C. Curley  
    Title:    Vice President & Treasurer  
       

 
  U.S. BANK NATIONAL ASSOCIATION,
as Trustee 		 
       
 
By:
/ s / Donald T. Hurrelbrink  
    Name:   Donald T. Hurrelbrink  
    Title:    Vice President  
       



[Signature Page to First Supplemental Indenture]
Exhibit 4.7
 
 
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT dated October 5, 2015 (this “ Agreement ”) is entered into by and among Blue Cube Spinco Inc., a Delaware corporation (the “ Company ”), Olin Corporation, a Virginia corporation (the “ Parent ”), and J.P. Morgan Securities LLC (“ J.P. Morgan ”) and Wells Fargo Securities, LLC for themselves and as representatives of the several initial purchasers listed in Schedule 1 to the Purchase Agreement (as defined below) (the “ Initial Purchasers ”).
The Company, the Parent, the Initial Purchasers and the selling securityholders listed in Schedule 2 to the Purchase Agreement (the “ Selling Securityholders ”) are parties to the Purchase Agreement dated September 25, 2015 (the “ Purchase Agreement ”), which provides for the sale by the Selling Securityholders to the Initial Purchasers of $720,000,000 aggregate principal amount of the Company’s 9.75% Senior Notes due 2023 (the “ 2023 Notes ”) and $500,000,000 aggregate principal amount of the Company’s 10.00% Senior Notes due 2025 (the “ 2025 Notes ” and, together with the 2023 Notes, the “ Securities ”) which will be guaranteed on a senior unsecured basis by the Parent.  As an inducement to the Initial Purchasers to enter into the Purchase Agreement, the Company and the Parent have agreed to provide to the Initial Purchasers and their direct and indirect transferees the registration rights set forth in this Agreement.  The execution and delivery of this Agreement is a condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1.              Definitions .  As used in this Agreement, the following terms shall have the following meanings:
“ 2023 Indenture ” shall mean the Indenture, dated as of October 5, 2015, between the Company and U.S. Bank National Association, as trustee, as supplemented by the First Supplemental Indenture, dated as of October 5, 2015, among the Company, the Parent and the Trustee, relating to the 2023 Notes.
“ 2025 Indenture ” shall mean the Indenture, dated as of October 5, 2015, between the Company and U.S. Bank National Association, as trustee, as supplemented by the First Supplemental Indenture, dated as of October 5, 2015, among the Company, the Parent and the Trustee, relating to the 2025 Notes.
“ Additional Guarantor ” shall mean any subsidiary of the Parent (other than the Company) that executes a Guarantee under the applicable Indenture after the date of this Agreement.
“ Business Day ” shall mean any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed.
“ Company ” shall have the meaning set forth in the preamble and shall also include the Company’s successors.
“ Exchange Act ” shall mean the Securities Exchange Act of 1934, as amended from time to time.
“ Exchange Dates ” shall have the meaning set forth in Section 2(a)(ii) hereof.
“ Exchange Offer ” shall mean the exchange offer by the Company and the Guarantor(s) of Exchange Securities for Registrable Securities pursuant to Section 2(a) hereof.
“ Exchange Offer Registration ” shall mean a registration under the Securities Act effected pursuant to Section 2(a) hereof.
“ Exchange Offer Registration Statement ” shall mean an exchange offer registration statement on Form S-4 (or, if applicable, on another appropriate form) and all amendments and supplements to such registration statement, in each case including the Prospectus contained therein or deemed a part thereof, all exhibits thereto and any document incorporated by reference therein.
“ Exchange Securities ” shall mean senior notes issued by the Company and guaranteed by the Guarantor(s) under the applicable Indenture containing terms identical to the Securities governed by such Indenture (except that the Exchange Securities will not be subject to restrictions on transfer or to any increase in annual interest rate for failure to comply with this Agreement) and to be offered to Holders of such Securities in exchange for such Securities pursuant to the Exchange Offer.
“ FINRA ” means the Financial Industry Regulatory Authority, Inc.
“ Free Writing Prospectus ” means each free writing prospectus (as defined in Rule 405 under the Securities Act) prepared by or on behalf of the Company or used or referred to by the Company in connection with the sale of the Securities or the Exchange Securities.
“ Guarantees ” shall mean the guarantees of the Securities and guarantees of the Exchange Securities by the Guarantor(s) under the applicable Indenture.
“ Guarantors ” shall mean the Parent, any Additional Guarantors and any Guarantor’s successor that Guarantees the Securities.
“ Holders ” shall mean the Initial Purchasers, for so long as they own any Registrable Securities, and each of their successors, assigns and direct and indirect transferees who become owners of Registrable Securities under the applicable Indenture; provided that, for purposes of Section 4 and Section 5 hereof, the term “Holders” shall include Participating Broker-Dealers.
“ Indemnified Person ” shall have the meaning set forth in Section 5(c) hereof.
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“ Indemnifying Person ” shall have the meaning set forth in Section 5(c) hereof.
“ Indentures ” shall mean the 2023 Indenture together with the 2025 Indenture, as each may be amended from time to time in accordance with the terms thereof.
“ Initial Purchasers ” shall have the meaning set forth in the preamble.
“ Inspector ” shall have the meaning set forth in Section 3(a)(xiv) hereof.
“ Issuer Information ” shall have the meaning set forth in Section 5(a) hereof.
“ J.P. Morgan ” shall have the meaning set forth in the preamble.
“ Majority Holders ” shall mean, with respect to any series of Securities, the Holders of a majority of the aggregate principal amount of the outstanding Registrable Securities of such series; provided that whenever the consent or approval of Holders of a specified percentage of Registrable Securities is required hereunder, any Registrable Securities owned directly or indirectly by the Company or any of its “affiliates” (within the meaning of Rule 405 under the Securities Act) shall not be counted in determining whether such consent or approval was given by the Holders of such required percentage or amount; and provided , further , that if the Company shall issue any additional Securities of a series under the applicable Indenture prior to consummation of the Exchange Offer or, if applicable, the effectiveness of any Shelf Registration Statement, such additional Securities and the corresponding Registrable Securities to which this Agreement relates shall be treated together as one class for purposes of determining whether the consent or approval of Holders of a specified percentage of Registrable Securities of such series has been obtained.
“ Notice and Questionnaire ” shall mean a notice of registration statement and selling security holder questionnaire distributed to a Holder by the Company upon receipt of a Shelf Request from such Holder.
“ Participating Broker-Dealers ” shall have the meaning set forth in Section 4(a) hereof.
“ Participating Holder ” shall mean any Holder of Registrable Securities that has returned a completed and signed Notice and Questionnaire to the Company in accordance with Section 2(b) hereof.
“ Person ” shall mean an individual, partnership, limited liability company, corporation, trust or unincorporated organization, or a government or agency or political subdivision thereof.
“ Prospectus ” shall mean the prospectus included in, or, pursuant to the rules and regulations of the Securities Act, deemed a part of, a Registration Statement, including any preliminary prospectus, and any such prospectus as amended or supplemented by any prospectus supplement, including a prospectus supplement with respect to the terms of the offering of any portion of the Registrable Securities covered by a Shelf Registration Statement, and by all other amendments and supplements to such prospectus, and in each case including any document incorporated by reference therein.
3
“ Purchase Agreement ” shall have the meaning set forth in the preamble.
“ Registrable Securities ” shall mean the Securities; provided that the Securities of a series shall cease to be Registrable Securities (i) when a Registration Statement with respect to such Securities has become effective under the Securities Act and such Securities have been exchanged or disposed of pursuant to such Registration Statement, (ii) when such Securities cease to be outstanding, (iii) except in the case of Securities that otherwise remain Registrable Securities and that are held by an Initial Purchaser and that are ineligible to be exchanged in the applicable Exchange Offer, when the Exchange Offer for such series is consummated or (iv) solely for purposes of determining the Shelf Effectiveness Period, when such Securities may be sold by the Holder thereof pursuant to Rule 144 under the Exchange Act free of any manner of sale or volume limitations thereunder, under circumstances under which any legend borne by such Securities relating to restrictions on transferability thereof under the Securities Act is removed by the Company or pursuant to the applicable Indenture.
“ Registration Default ” shall mean the occurrence of any of the following with respect to a series of Securities: (i) the Exchange Offer for such series is not completed on or prior to the Target Registration Date, (ii) the Shelf Registration Statement for such series, if required pursuant to Section 2(b)(i) or Section 2(b)(ii) hereof, has not become effective on or prior to the Target Registration Date, (iii) if the Company receives a Shelf Request pursuant to Section 2(b)(iii) for such series, the Shelf Registration Statement required to be filed thereby has not become effective by the later of (a) the Target Registration Date and (b) 90 days after delivery of such Shelf Request or (iv) the Shelf Registration Statement for such series, if required by this Agreement, has become effective and thereafter ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days (whether or not consecutive) in any 12-month period.
“ Registration Expenses ” shall mean any and all expenses incident to performance of or compliance by the Company and the Guarantor(s) with this Agreement, including without limitation: (i) all SEC, stock exchange or FINRA registration and filing fees, (ii) all fees and expenses incurred in connection with compliance with state securities or blue sky laws (including reasonable fees and disbursements of counsel for any Underwriters or Holders in connection with blue sky qualification of any Exchange Securities or Registrable Securities), (iii) all expenses of any Persons in preparing or assisting in preparing, word processing, printing and distributing any Registration Statement, any Prospectus, any Free Writing Prospectus and any amendments or supplements thereto, any underwriting agreements, securities sales agreements or other similar agreements and any other documents relating to the performance of and compliance with this Agreement, (iv) all rating agency fees, (v) all fees and disbursements relating to the qualification of the Indentures under applicable securities laws and the Trust Indenture Act, (vi) the fees and disbursements of the Trustee and its counsel, (vii) the fees and disbursements of counsel for the Company and the Guarantor(s) and, in the case of a Shelf Registration Statement, the fees and disbursements of one counsel for the Participating Holders (which counsel shall be selected by the Participating Holders holding a majority of the aggregate principal amount of Registrable Securities held by such Participating Holders and which counsel may also be counsel for the Initial Purchasers) and (viii) the fees and disbursements of the independent registered public accountants of the Company and the Guarantor(s), including the expenses of any special audits or “comfort” letters required by or incident to the performance of and compliance with this Agreement, but excluding fees and expenses of counsel to the Underwriters (other than fees and expenses set forth in clause (ii) above) or the Holders and underwriting discounts and commissions, brokerage commissions and transfer taxes, if any, relating to the sale or disposition of Registrable Securities by a Holder.
4
“ Registration Statement ” shall mean any registration statement of the Company and the Guarantor(s) that covers any of the Exchange Securities or Registrable Securities pursuant to the provisions of this Agreement and all amendments and supplements to any such registration statement, including post-effective amendments, in each case including the Prospectus contained therein or deemed a part thereof, all exhibits thereto and any document incorporated by reference therein.
“ SEC ” shall mean the United States Securities and Exchange Commission.
“ Securities ” shall have the meaning set forth in the preamble.
“ Securities Act ” shall mean the Securities Act of 1933, as amended from time to time.
“ Shelf Effectiveness Period ” shall have the meaning set forth in Section 2(b) hereof.
“ Shelf Registration ” shall mean a registration effected pursuant to Section 2(b) hereof.
“ Shelf Registration Statement ” shall mean a “shelf” registration statement of the Company and the Guarantor(s) that covers all or a portion of the Registrable Securities (but no other securities unless approved by a majority in aggregate principal amount of the Securities held by the Participating Holders) on an appropriate form under Rule 415 under the Securities Act, or any similar rule that may be adopted by the SEC, and all amendments and supplements to such registration statement, including post-effective amendments, in each case including the Prospectus contained therein or deemed a part thereof, all exhibits thereto and any document incorporated by reference therein.
5
“ Shelf Request ” shall have the meaning set forth in Section 2(b) hereof.
“ Staff ” shall mean the staff of the SEC.
“ Target Registration Date ” shall mean October 5, 2016.
“ Trust Indenture Act ” shall mean the Trust Indenture Act of 1939, as amended from time to time.
“ Trustee ” shall mean the trustee with respect to the Securities under the applicable Indenture.
“ Underwriter ” shall have the meaning set forth in Section 3(e) hereof.
“ Underwritten Offering ” shall mean an offering in which Registrable Securities are sold to an Underwriter for reoffering to the public.
2.              Registration Under the Securities Act .  (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company and the Guarantor(s) shall (x) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities and (y) use their reasonable best efforts to have such Registration Statement become effective.  The Company and the Guarantor(s) shall use their reasonable best efforts to complete the Exchange Offer not later than 366 days after the Exchange Offer Registration Statement becomes effective.
The Company and the Guarantor(s) shall commence the Exchange Offer after the SEC declares the Exchange Offer Registration Statement effective by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i)
that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly withdrawn will be accepted for exchange;
   
(ii)
the dates of acceptance for exchange (which shall be a period of at least 20 Business Days from the date such notice is mailed (or longer if required by applicable law)) (the “ Exchange Dates ”);
   
(iii)
that any Registrable Security not tendered will remain outstanding and continue to accrue interest but will not retain any rights under this Agreement, except as otherwise specified herein;
 
 
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(iv)
that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
   
(v)
that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) sending to the institution and at the address specified in the notice, a telegram, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities.

As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantor(s) that (1) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (2) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (3) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor, (4) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities and (5) such Holder is not acting on behalf of any person who, to its knowledge, could not truthfully make the foregoing representations.
As soon as practicable after the last Exchange Date, the Company and the Guarantor(s) shall:
(I)
accept for exchange Registrable Securities or portions thereof validly tendered and not properly withdrawn pursuant to the Exchange Offer; and
   
(II)
deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered by such Holder.
 
 
(b)              In the event that (i) the Company and the Guarantor(s) determine that the Exchange Offer Registration provided for in Section 2(a) hereof is not available or the Exchange Offer may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the Staff, (ii) the Exchange Offer is not for any other reason completed by the Target Registration Date or (iii) upon receipt of a written request (a “ Shelf Request ”) from any Initial Purchaser representing that it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange Offer, the Company and the Guarantor(s) shall use their reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Request, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effective; provided that no Holder will be entitled to have any Registrable Securities included in any Shelf Registration Statement, or entitled to use the prospectus forming a part of such Shelf Registration Statement, until such Holder shall have delivered a completed and signed Notice and Questionnaire and provided such other information regarding such Holder to the Company as is contemplated by Section 3(b) hereof.
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If a Shelf Registration Statement is required to be filed under the preceding paragraph, the Company and the Guarantor(s) agree to use their reasonable best efforts to keep the Shelf Registration Statement continuously effective for a period of until the Securities cease to be Registrable Securities (the “ Shelf Effectiveness Period ”).  The Company and the Guarantor(s) further agree to supplement or amend the Shelf Registration Statement, the related Prospectus and any Free Writing Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their reasonable best efforts to cause any such amendment to become effective, if required, and such Shelf Registration Statement, Prospectus or Free Writing Prospectus, as the case may be, to become usable as soon as thereafter practicable.  The Company and the Guarantor(s) agree to furnish to the Participating Holders copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c)              The Company and the Guarantor(s) shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof.  Each Holder shall pay all underwriting discounts and commissions, brokerage commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s Registrable Securities pursuant to the Shelf Registration Statement.
(d)              An Exchange Offer Registration Statement pursuant to Section 2(a) hereof will not be deemed to have become effective unless it has been declared effective by the SEC.  A Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act.
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If a Registration Default occurs with respect to a series of Securities, the interest rate on the Registrable Securities of such series will be increased by (i) 0.25% per annum for the first 90-day period beginning on the day immediately following such Registration Default and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until and including the date such Registration Default ends, up to a maximum increase of 1.00% per annum.  A Registration Default ends when the Securities cease to be Registrable Securities or, if earlier, (1) in the case of a Registration Default under clause (i) of the definition thereof, when the Exchange Offer is completed, (2) in the case of a Registration Default under clause (ii) or clause (iii) of the definition thereof, when the Shelf Registration Statement becomes effective or (3) in the case of a Registration Default under clause (iv) of the definition thereof, when the Shelf Registration Statement again becomes effective or the Prospectus again becomes usable.  If at any time more than one Registration Default has occurred and is continuing, then, until the next date that there is no Registration Default, the increase in interest rate provided for by this paragraph shall apply as if there occurred a single Registration Default that begins on the date that the earliest such Registration Default occurred and ends on such next date that there is no Registration Default.
3.              Registration Procedures .  (a) In connection with their obligations pursuant to Section 2(a) and Section 2(b) hereof, the Company and the Guarantor(s) shall use their reasonable best efforts to:
(i)              prepare and file with the SEC a Registration Statement on the appropriate form under the Securities Act, which form (A) shall be selected by the Company and the Guarantor(s), (B) shall, in the case of a Shelf Registration, be available for the sale of the Registrable Securities by the Holders thereof and (C) shall comply as to form in all material respects with the requirements of the applicable form and include all financial statements required by the SEC to be filed therewith; and use their reasonable best efforts to cause such Registration Statement to become effective and remain effective for the applicable period in accordance with Section 2 hereof;
(ii)              prepare and file with the SEC such amendments and post-effective amendments to each Registration Statement as may be necessary to keep such Registration Statement effective for the applicable period in accordance with Section 2 hereof and cause each Prospectus to be supplemented by any required prospectus supplement and, as so supplemented, to be filed pursuant to Rule 424 under the Securities Act; and keep each Prospectus current during the period described in Section 4(3) of and Rule 174 under the Securities Act that is applicable to transactions by brokers or dealers with respect to the Registrable Securities or Exchange Securities;
(iii)              to the extent any Free Writing Prospectus is used, file with the SEC any Free Writing Prospectus that is required to be filed by the Company or the Guarantor(s) with the SEC in accordance with the Securities Act and to retain any Free Writing Prospectus not required to be filed;
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(iv)              in the case of a Shelf Registration, furnish to each Participating Holder, to counsel for the Initial Purchasers, to counsel for such Participating Holders and to each Underwriter of an Underwritten Offering of Registrable Securities, if any, without charge, as many copies of each Prospectus, preliminary prospectus or Free Writing Prospectus, and any amendment or supplement thereto, as such Participating Holder, counsel or Underwriter may reasonably request in order to facilitate the sale or other disposition of the Registrable Securities thereunder; and, subject to Section 3(c) hereof, the Company and the Guarantor(s) consent to the use of such Prospectus, preliminary prospectus or such Free Writing Prospectus and any amendment or supplement thereto in accordance with applicable law by each of the Participating Holders and any such Underwriters in connection with the offering and sale of the Registrable Securities covered by and in the manner described in such Prospectus, preliminary prospectus or such Free Writing Prospectus or any amendment or supplement thereto in accordance with applicable law;
(v)              register or qualify the Registrable Securities under all applicable state securities or blue sky laws of such jurisdictions as any Participating Holder shall reasonably request in writing by the time the applicable Registration Statement becomes effective; cooperate with such Participating Holders in connection with any filings required to be made with FINRA; and do any and all other acts and things that may be reasonably necessary or advisable to enable each Participating Holder to complete the disposition in each such jurisdiction of the Registrable Securities owned by such Participating Holder; provided that neither the Company nor any Guarantor shall be required to (1) 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, (2) file any general consent to service of process in any such jurisdiction or (3) subject itself to taxation in any such jurisdiction if it is not so subject;
(vi)              notify counsel for the Initial Purchasers and, in the case of a Shelf Registration, notify each Participating Holder and counsel for such Participating Holders promptly and, if requested by any such Participating Holder or counsel, confirm the same in writing (1) when a Registration Statement has become effective, when any post-effective amendment thereto has been filed and becomes effective, when any Free Writing Prospectus has been filed or any amendment or supplement to the Prospectus or any Free Writing Prospectus has been filed, (2) of any request by the SEC or any state securities authority for amendments and supplements to a Registration Statement, Prospectus or any Free Writing Prospectus or for additional information after the Registration Statement has become effective, (3) of the issuance by the SEC or any state securities authority of any stop order suspending the effectiveness of a Registration Statement or the initiation of any proceedings for that purpose, including the receipt by the Company of any notice of objection of the SEC to the use of a Shelf Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act, (4) if, between the applicable effective date of a Shelf Registration Statement and the closing of any sale of Registrable Securities covered thereby, the representations and warranties of the Company or any Guarantor contained in any underwriting agreement, securities sales agreement or other similar agreement, if any, relating to an offering of such Registrable Securities cease to be true and correct in all material respects or if the Company or any Guarantor receives any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation of any proceeding for such purpose, (5) of the happening of any event during the period a Registration Statement is effective that makes any statement made in such Registration Statement or the related Prospectus or any Free Writing Prospectus untrue in any material respect or that requires the making of any changes in such Registration Statement or Prospectus or any Free Writing Prospectus in order to make the statements therein not misleading and (6) of any determination by the Company or any Guarantor that a post-effective amendment to a Registration Statement or any amendment or supplement to the Prospectus or any Free Writing Prospectus would be appropriate;
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(vii)              obtain the withdrawal of any order suspending the effectiveness of a Registration Statement or, in the case of a Shelf Registration, the resolution of any objection of the SEC pursuant to Rule 401(g)(2) under the Securities Act, including by filing an amendment to such Registration Statement on the proper form;
(viii)              in the case of a Shelf Registration, furnish to each Participating Holder, without charge, at least one conformed copy of each Registration Statement and any post-effective amendment thereto if requested by such Participating Holder (without any documents incorporated therein by reference or exhibits thereto, unless requested);
(ix)              in the case of a Shelf Registration, cooperate with the Participating Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends and enable such Registrable Securities to be issued in such denominations and registered in such names (consistent with the provisions of the applicable Indenture) as such Participating Holders may reasonably request at least one Business Day prior to the closing of any sale of Registrable Securities;
(x)              upon the occurrence of any event contemplated by Section 3(a)(vi)(5) hereof, prepare and file with the SEC a supplement or post-effective amendment to the applicable Exchange Offer Registration Statement or Shelf Registration Statement or the related Prospectus or any Free Writing Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered (or, to the extent permitted by law, made available) to purchasers of the Registrable Securities, such Prospectus or Free Writing Prospectus, as the case may be, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and the Company and the Guarantor(s) shall notify the Participating Holders (in the case of a Shelf Registration Statement) and the Initial Purchasers and any Participating Broker-Dealers known to the Company (in the case of an Exchange Offer Registration Statement) to suspend use of the Prospectus or any Free Writing Prospectus as promptly as practicable after the occurrence of such an event, and such Participating Holders, such Participating Broker-Dealers and the Initial Purchasers, as applicable, hereby agree to suspend use of the Prospectus or any Free Writing Prospectus, as the case may be, until the Company and the Guarantor(s) have amended or supplemented the Prospectus or the Free Writing Prospectus, as the case may be, to correct such misstatement or omission;
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(xi)              prior to the filing of any Registration Statement, any Prospectus or any amendment to a Registration Statement or amendment or supplement to a Prospectus, provide copies of such document to the Initial Purchasers and their counsel (and, in the case of a Shelf Registration Statement, to the Participating Holders and their counsel); and the Company and the Guarantor(s) shall not, at any time after initial filing of a Registration Statement, use or file any Prospectus, or any amendment of or supplement to a Registration Statement or a Prospectus to which the Initial Purchasers or their counsel (and, in the case of a Shelf Registration Statement, the Participating Holders or their counsel) shall reasonably object;
(xii)              obtain a CUSIP number for each series of Exchange Securities or Registrable Securities, as the case may be, not later than the initial effective date of a Registration Statement;
(xiii)              cause the applicable Indenture to be qualified under the Trust Indenture Act in connection with the registration of the Exchange Securities or Registrable Securities, as the case may be; cooperate with the Trustee and the Holders to effect such changes to such Indenture as may be required for such Indenture to be so qualified in accordance with the terms of the Trust Indenture Act; and execute, and use their reasonable best efforts to cause the Trustee to execute, all documents as may be required to effect such changes and all other forms and documents required to be filed with the SEC to enable such Indenture to be so qualified in a timely manner;
(xiv)              in the case of a Shelf Registration, make available for inspection by a representative of the Participating Holders (an “ Inspector ”), any Underwriter participating in any disposition pursuant to such Shelf Registration Statement, any attorneys and accountants designated by a majority in aggregate principal amount of the Securities held by the Participating Holders and any attorneys and accountants designated by such Underwriter, at reasonable times and in a reasonable manner, all pertinent financial and other records, documents and properties of the Company and its subsidiaries, and cause the respective officers, directors and employees of the Company and the Guarantor(s) to supply all information reasonably requested by any such Inspector, Underwriter, attorney or accountant in connection with a Shelf Registration Statement; provided that if any such information is identified by the Company or any Guarantor as being confidential or proprietary, each Person receiving such information shall take such actions as are reasonably necessary to protect the confidentiality of such information;
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(xvi)              if reasonably requested by any Participating Holder, promptly include in a Prospectus supplement or post-effective amendment such information with respect to such Participating Holder as such Participating Holder reasonably requests to be included therein and make all required filings of such Prospectus supplement or such post-effective amendment reasonably promptly after Company has received notification of the matters to be so included in such filing;
(xvii)              in the case of a Shelf Registration, enter into such customary agreements and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities including, but not limited to, an Underwritten Offering and in such connection, (1) to the extent possible, make such representations and warranties to the Participating Holders and any Underwriters of such Registrable Securities with respect to the business of the Company and its subsidiaries and the Registration Statement, Prospectus, any Free Writing Prospectus and documents incorporated by reference or deemed incorporated by reference, if any, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings and confirm the same if and when requested, (2) obtain customary opinions of counsel to the Company and the Guarantor(s) addressed to each Underwriter of Registrable Securities, covering the matters customarily covered in opinions requested in underwritten offerings, (3) obtain “comfort” letters from the independent registered public accountants of the Company and the Guarantor(s) addressed to each Underwriter of Registrable Securities, such letters to be in customary form and covering matters of the type customarily covered in “comfort” letters in connection with underwritten offerings and (4) deliver such documents and certificates as may be reasonably requested by the Underwriters, and which are customarily delivered in underwritten offerings, to evidence the continued validity of the representations and warranties of the Company and the Guarantor(s) made pursuant to clause (1) above and to evidence compliance with any customary conditions contained in an underwriting agreement; and
(xviii)              so long as any Registrable Securities remain outstanding, cause each Additional Guarantor with 45 days of the creation or acquisition by the Company of such Additional Guarantor, to execute a counterpart to this Agreement in the form attached hereto as Annex A and to deliver such counterpart, to the Initial Purchasers no later than five Business Days following the execution thereof.
(b)              In the case of a Shelf Registration Statement, the Company may require each Holder of Registrable Securities to furnish to the Company a Notice and Questionnaire and such other information regarding such Holder and the proposed disposition by such Holder of such Registrable Securities as the Company and the Guarantor(s) may from time to time reasonably request in writing.
(c)              Each Participating Holder agrees that, upon receipt of any notice from the Company and the Guarantor(s) of the happening of any event of the kind described in Section 3(a)(vi)(3) or Section 3(a)(vi)(5) hereof, such Participating Holder will forthwith discontinue disposition of Registrable Securities pursuant to the Shelf Registration Statement until such Participating Holder’s receipt of the copies of the supplemented or amended Prospectus and any Free Writing Prospectus contemplated by Section 3(a)(x) hereof and, if so directed by the Company and the Guarantor(s), such Participating Holder will deliver to the Company and the Guarantor(s) all copies in its possession, other than permanent file copies then in such Participating Holder’s possession, of the Prospectus and any Free Writing Prospectus covering such Registrable Securities that is current at the time of receipt of such notice.
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(d)              If the Company and the Guarantor(s) shall give any notice to suspend the disposition of Registrable Securities pursuant to a Registration Statement, the Company and the Guarantor(s) shall extend the period during which such Registration Statement shall be maintained effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such notice to and including the date when the Holders of such Registrable Securities shall have received copies of the supplemented or amended Prospectus or any Free Writing Prospectus necessary to resume such dispositions.
(e)              In case of a Shelf Registration, the Participating Holders who desire to do so may sell such Registrable Securities in an Underwritten Offering.  In any such Underwritten Offering, the investment bank or investment banks and manager or managers (each an “ Underwriter ”) that will administer the offering will be selected by the Holders of a majority in principal amount of the Registrable Securities included in such offering.
4.              Participation of Broker-Dealers in Exchange Offer .  (a)  The Staff has taken the position that any broker-dealer that receives Exchange Securities for its own account in the Exchange Offer in exchange for Securities that were acquired by such broker-dealer as a result of market-making or other trading activities (a “ Participating Broker-Dealer ”) may be deemed to be an “underwriter” within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Securities.
The Company and the Guarantor(s) understand that it is the Staff’s position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Securities, without naming the Participating Broker-Dealers or specifying the amount of Exchange Securities owned by them, such Prospectus may be delivered by Participating Broker-Dealers (or, to the extent permitted by law, made available to purchasers) to satisfy their prospectus delivery obligation under the Securities Act in connection with resales of Exchange Securities for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act.
(b)              In light of the above, the Company and the Guarantor(s) agree, if requested by a Participating Broker-Dealer, to amend or supplement the Prospectus contained in the Exchange Offer Registration Statement for a period of up to 180 days after the last Exchange Date (as such period may be extended pursuant to Section 3(d) hereof), in order to expedite or facilitate the disposition of any Exchange Securities by Participating Broker-Dealers consistent with the positions of the Staff recited in Section 4(a) above.  The Company and the Guarantor(s) further agree that Participating Broker-Dealers shall be authorized to deliver such Prospectus (or, to the extent permitted by law, make available) during such period in connection with the resales contemplated by this Section 4.
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(c)              The Initial Purchasers shall have no liability to the Company, any Guarantor or any Holder with respect to any request that they may make pursuant to Section 4(b) hereof.
5.              Indemnification and Contribution .  (a)  The Company and each Guarantor, jointly and severally, agree to indemnify and hold harmless each Initial Purchaser and each Holder, their respective affiliates, directors and officers and each Person, if any, who controls any Initial Purchaser or any Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages and liabilities (including, without limitation, 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, (1) any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement or any omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein not misleading, or (2) any untrue statement or alleged untrue statement of a material fact contained in any Prospectus, any Free Writing Prospectus or any “issuer information” (“ Issuer Information ”) filed or required to be filed pursuant to Rule 433(d) under the Securities Act, or any omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, in each case except insofar as such losses, claims, damages or liabilities arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to any Initial Purchaser or information relating to any Holder furnished to the Company in writing through J.P. Morgan or any selling Holder, respectively, expressly for use therein.
(b)              Each Holder agrees, severally and not jointly, to indemnify and hold harmless the Company, the Guarantor(s), the Initial Purchasers and the other selling Holders, the directors of the Company and the Guarantor(s), each officer of the Company and the Guarantor(s) who signed the Registration Statement and each Person, if any, who controls the Company, the Guarantor(s), any Initial Purchaser and any other selling Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the indemnity set forth in paragraph (a) above, but only with respect to any losses, claims, damages or liabilities that arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to such Holder furnished to the Company in writing by such Holder expressly for use in any Registration Statement, any Prospectus and any Free Writing Prospectus.
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(c)              If any suit, action, proceeding (including any governmental or regulatory investigation), claim or demand shall be brought or asserted against any Person in respect of which indemnification may be sought pursuant to either paragraph (a) or (b) above, such Person (the “ Indemnified Person ”) shall promptly notify the Person against whom such indemnification may be sought (the “ Indemnifying Person ”) in writing; provided that the failure to notify the Indemnifying Person shall not relieve it from any liability that it may have under paragraph (a) or (b) above except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and provided , further , that the failure to notify the Indemnifying Person shall not relieve it from any liability that it may have to an Indemnified Person otherwise than under paragraph (a) or (b) above.  If any such proceeding shall be brought or asserted against an Indemnified Person and it shall have notified the Indemnifying Person thereof, the Indemnifying Person shall retain counsel reasonably satisfactory to the Indemnified Person to represent the Indemnified Person and any others entitled to indemnification pursuant to this Section 5 that the Indemnifying Person may designate in such proceeding and shall pay the fees and expenses of such proceeding and shall pay the 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 upon demand.  Any such separate firm (x) for any Initial Purchaser, its affiliates, directors and officers and any control Persons of such Initial Purchaser shall be designated in writing by J.P. Morgan, (y) for any Holder, its directors and officers and any control Persons of such Holder shall be designated in writing by the Majority Holders and (z) in all other cases shall be designated in writing by the Company.  The Indemnifying Person shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Person agrees to indemnify each Indemnified Person from and against any loss or liability by reason of such settlement or judgment.  Notwithstanding the foregoing sentence, if at any time an Indemnified Person shall have requested that an Indemnifying Person reimburse the Indemnified Person for fees and expenses of counsel as contemplated by this paragraph, the Indemnifying Person shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by the Indemnifying Person of such request and (ii) the Indemnifying Person shall not have reimbursed the Indemnified Person in accordance with such request prior to the date of such settlement.  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 (A) includes an unconditional release of such Indemnified Person, in form and substance reasonably satisfactory to such Indemnified Person, from all liability on claims that are the subject matter of such proceeding and (B) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnified Person.
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(d)              If the indemnification provided for in paragraphs (a) and (b) above is unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu of indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by such Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company and the Guarantor(s) from the offering of the Securities and the Exchange Securities, on the one hand, and by the Holders from receiving Securities or Exchange Securities registered under the Securities Act, on the other hand, or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the relative fault of the Company and the Guarantor(s) on the one hand and the Holders on the other in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations.  The relative fault of the Company and the Guarantor(s) on the one hand and the Holders on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company and the Guarantor(s) or by the Holders and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(e)              The Company, the Guarantor(s) and the Holders agree that it would not be just and equitable if contribution pursuant to this Section 5 were determined by pro   rata allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in paragraph (d) above.  The amount paid or payable by an Indemnified Person as a result of the losses, claims, damages and liabilities referred to in paragraph (d) above shall be deemed to include, subject to the limitations set forth above, any legal or other expenses incurred by such Indemnified Person in connection with any such action or claim.  Notwithstanding the provisions of this Section 5, in no event shall a Holder be required to contribute any amount in excess of the amount by which the total price at which the Securities or Exchange Securities sold by such Holder exceeds the amount of any damages that such Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission.  No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.  The Holders’ obligations to contribute pursuant to this Section 5 are several and not joint.
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(f)              The remedies provided for in this Section 5 are not exclusive and shall not limit any rights or remedies that may otherwise be available to any Indemnified Person at law or in equity.
(g)              The indemnity and contribution provisions contained in this Section 5 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of the Initial Purchasers or any Holder or any Person controlling any Initial Purchaser or any Holder, or by or on behalf of the Company or the Guarantor(s) or the officers or directors of or any Person controlling the Company or the Guarantor(s), (iii) acceptance of any of the Exchange Securities and (iv) any sale of Registrable Securities pursuant to a Shelf Registration Statement.
6.              General .
(a)              No Inconsistent Agreements.  The Company and the Guarantor(s) represent, warrant and agree that (i) the rights granted to the Holders hereunder do not in any way conflict with and are not inconsistent with the rights granted to the holders of any other outstanding securities issued or guaranteed by the Company or any Guarantor under any other agreement and (ii) neither the Company nor any Guarantor has entered into, or on or after the date of this Agreement will enter into, any agreement that is inconsistent with the rights granted to the Holders of Registrable Securities in this Agreement or otherwise conflicts with the provisions hereof.
(b)              Amendments and Waivers.  The provisions of this Agreement, including the provisions of this sentence, may not be amended, modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given unless the Company and the Guarantor(s) have obtained the written consent of Holders of at least a majority in aggregate principal amount of the outstanding Registrable Securities affected by such amendment, modification, supplement, waiver or consent; provided that no amendment, modification, supplement, waiver or consent to any departure from the provisions of Section 5 hereof shall be effective as against any Holder of Registrable Securities unless consented to in writing by such Holder.  Any amendments, modifications, supplements, waivers or consents pursuant to this Section 6(b) shall be by a writing executed by each of the parties hereto.
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(c)              Notices.   All notices and other communications provided for or permitted hereunder shall be made in writing by hand-delivery, registered first-class mail, telecopier, or any courier guaranteeing overnight delivery (i) if to a Holder, at the most current address given by such Holder to the Company by means of a notice given in accordance with the provisions of this Section 6(c), which address initially is, with respect to the Initial Purchasers, the address set forth in the Purchase Agreement; (ii) if to the Company and the Guarantor(s), initially at the Company’s address set forth in the Purchase Agreement and thereafter at such other address, notice of which is given in accordance with the provisions of this Section 6(c); and (iii) to such other persons at their respective addresses as provided in the Purchase Agreement and thereafter at such other address, notice of which is given in accordance with the provisions of this Section 6(c).  All such notices and communications shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; when receipt is acknowledged, if telecopied; and on the next Business Day if timely delivered to an air courier guaranteeing overnight delivery.  Copies of all such notices, demands or other communications shall be concurrently delivered by the Person giving the same to the Trustee, at the address specified in the applicable Indenture.
(d)              Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the successors, assigns and transferees of each of the parties, including, without limitation and without the need for an express assignment, subsequent Holders; provided that nothing herein shall be deemed to permit any assignment, transfer or other disposition of Registrable Securities in violation of the terms of the Purchase Agreement or the applicable Indenture.  If any transferee of any Holder shall acquire Registrable Securities in any manner, whether by operation of law or otherwise, such Registrable Securities shall be held subject to all the terms of this Agreement, and by taking and holding such Registrable Securities such Person shall be conclusively deemed to have agreed to be bound by and to perform all of the terms and provisions of this Agreement and such Person shall be entitled to receive the benefits hereof.  The Initial Purchasers (in their capacity as Initial Purchasers) shall have no liability or obligation to the Company or the Guarantor(s) with respect to any failure by a Holder to comply with, or any breach by any Holder of, any of the obligations of such Holder under this Agreement.
(e)              Third Party Beneficiaries.   Each Holder of a series of Securities shall be a third party beneficiary to the agreements made hereunder with respect to such series between the Company and the Guarantor(s), on the one hand, and the Initial Purchasers, on the other hand, and shall have the right to enforce such agreements directly to the extent it deems such enforcement necessary or advisable to protect its rights or the rights of other Holders hereunder of such series.
(f)              Counterparts. This Agreement may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.
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(g)              Headings.  The headings in this Agreement are for convenience of reference only, are not a part of this Agreement and shall not limit or otherwise affect the meaning hereof.
(h)              Governing Law.  This Agreement, and any claim, controversy or dispute arising under or related to this Agreement, shall be governed by and construed in accordance with the laws of the State of New York.
(j)              Entire Agreement; Severability.   This Agreement contains the entire agreement between the parties relating to the subject matter hereof and supersedes all oral statements and prior writings with respect thereto.  If any term, provision, covenant or restriction contained in this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable or against public policy, the remainder of the terms, provisions, covenants and restrictions contained herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated and the Company, the Guarantor(s) and the Initial Purchasers shall endeavor in good faith negotiations to replace the invalid, void or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, void or unenforceable provisions.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
  BLUE CUBE SPINCO INC.  
       
 
By:
/s/ Stephen C. Curley  
    Name: Stephen C. Curley  
    Title:   Vice President & Treasurer  
       
 
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  OLIN CORPORATION  
       
 
By:
/s/ Stephen C. Curley  
    Name: Stephen C. Curley  
    Title:   Vice President & Treasurer  
       
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Confirmed and accepted as of the date first above written:

J.P. MORGAN SECURITIES LLC

For itself and on behalf of the
several Initial Purchasers


By
  /s/ Veronica A. Korb  
 
Authorized Signatory
 
WELLS FARGO SECURITIES, LLC

For itself and on behalf of the
several Initial Purchasers

By
  /s/ Jake Petkovich
 
Authorized Signatory
 
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Annex A
Counterpart to Registration Rights Agreement
The undersigned hereby absolutely, unconditionally and irrevocably agrees as a Guarantor (as defined in the Registration Rights Agreement, dated October 5, 2015 by and among Blue Cube Spinco Inc., a Delaware corporation, Olin Corporation, a Virginia corporation and J.P. Morgan Securities LLC and Wells Fargo Securities, LLC, on behalf of themselves and the other Initial Purchasers) to be bound by the terms and provisions of such Registration Rights Agreement.
IN WITNESS WHEREOF, the undersigned has executed this counterpart as of _______________, 201_.
  [GUARANTOR]  
       
 
By
   
    Name:  
    Title:  
       
 
Exhibit 5.1
 
 
 
HUNTON & WILLIAMS LLP
RIVERFRONT PLAZA, EAST TOWER
951 EAST BYRD STREET
RICHMOND, VIRGINIA 23219-4074
TEL              804 • 788 • 8200
FAX            804 • 788 • 8218
 
FILE             29387.000037
October 5, 2015
 

Olin Corporation
190 Carondelet Plaza, Suite 1530
Clayton, Missouri 63105-3443

Olin Corporation
Registration Statement on Form S-4
Ladies and Gentlemen:
 
We have acted as special Virginia counsel to Olin Corporation, a Virginia corporation (the “Company”), for the purpose of providing this opinion letter in connection with the Registration Statement on Form S-4 (Registration No. 333-203990) initially filed by the Company on May 8, 2015 (as amended, the “Registration Statement”) with the Securities and Exchange Commission (the “Commission”) pursuant to the Securities Act of 1933, as amended (the “Securities Act”), to register under the Securities Act 87,482,759 shares (the “Shares”) of the Company’s common stock, par value $1 per share (“Common Stock”), issuable in the transactions contemplated by the Agreement and Plan of Merger, dated as of March 26, 2015 (as it may be amended from time to time, the “Merger Agreement”), among The Dow Chemical Company, Blue Cube Spinco Inc., the Company and Blue Cube Acquisition Corp.
This opinion is being furnished in accordance with the requirements of Item 21 of Form S-4 and Item 601(b)(5)(i) of Regulation S-K.
In connection with the foregoing, we have examined originals or copies, certified or otherwise identified to our satisfaction, of such corporate records, certificates of corporate officers and public officials and such other documents as we have deemed necessary for the purposes of rendering this opinion, including the following:
a.            the Merger Agreement;
b.            the Registration Statement;
c.            the Company’s Amended and Restated Articles of Incorporation, including the Articles of Amendment filed with the Clerk of the State Corporation Commission of the Commonwealth of Virginia (the “SCC”) on September 28, 2015, as in effect on the date hereof;
ATLANTA   AUSTIN   BANGKOK   BEIJING   BRUSSELS   CHARLOTTE   DALLAS   HOUSTON   LONDON   LOS ANGELES
McLEAN   MIAMI   NEW YORK   NORFOLK   RALEIGH   RICHMOND   SAN FRANCISCO   TOKYO   WASHINGTON
www.hunton.com
 




Olin Corporation
October 5, 2015
Page 2

d.            the Company’s Bylaws, as in effect on the date hereof;
e.            the resolutions of the Company’s Board of Directors adopted on March 26, 2015 and July 23, 2015; and
f.            the good standing certificate for the Company issued by the SCC on the date hereof.
For purposes of the opinions expressed below, we have assumed (i) the authenticity of all documents submitted to us as originals, (ii) the conformity to the originals of all documents as certified, photostatic or electronic copies and the authenticity of the originals thereof, (iii) the legal capacity of natural persons, (iv) the genuineness of signatures not witnessed by us and (v) the due authorization, execution and delivery of all documents by all parties (other than the authorization, execution and delivery of documents by the Company) and the validity, binding effect and enforceability thereof on such parties.

As to factual matters, we have relied upon (i) the documents furnished to us by the Company, (ii) the statements and representations of officers and representatives of the Company, (iii) the corporate records provided to us by such officers or representatives and (iv) certificates and other documents obtained from public officials, without independent verification of their accuracy.

We express no opinion as to the law of any jurisdiction other than the laws of the Commonwealth of Virginia.

Based upon the foregoing, and such other documents and matters as we have deemed necessary to render the opinions set forth below, and subject to the limitations, assumptions and qualifications noted herein, we are of the opinion that:
1.            The Company is a corporation validly existing and in good standing under the laws of the Commonwealth of Virginia.
2.            The Shares have been duly authorized and, when the Shares have been issued upon the terms and conditions set forth in the Merger Agreement and as described in the Registration Statement, the Shares will be validly issued, fully paid and nonassessable.
 
 

Olin Corporation
October 5, 2015
Page 3
We consent to (i) the filing of this opinion letter with the Commission as an exhibit to the Form 8-K, (ii) the incorporation by reference of this opinion letter into the Registration Statement, and (iii) the reference made to this firm under the caption “Legal Matters” in the prospectus that forms a part of the Registration Statement.  In giving this consent, we do not admit that we are within the category of persons whose consent is required by Section 7 of the Securities Act or the rules and regulations promulgated thereunder by the Commission.
   
    Very truly yours,  
       
 
 
/s/ Hunton & Williams LLP  
       
 
Exhibit 10.2
 
 
 
 
 
 
 
 
 
GUARANTY AGREEMENT

dated as of

October 5, 2015,

among

BLUE CUBE SPINCO INC.,

as Borrower ,

OLIN CORPORATION,
 
as Guarantor
 
and

WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Administrative Agent
 
 
 
 
 
 
 
 

 
TABLE OF CONTENTS
 
 
 
 
 
ARTICLE I
 
Definitions
 
   
SECTION 1.01.  Defined Terms
1
SECTION 1.02.  Other Defined Terms
1
   
ARTICLE II
 
Guaranty
 
SECTION 2.01.  Guaranty
2
SECTION 2.02.  Guaranty Absolute
2
SECTION 2.03.  Waivers and Acknowledgments
3
SECTION 2.04.  Subrogation
4
SECTION 2.05.  Subordination
4
SECTION 2.06.  Continuing Guaranty; Assignments
5
   
ARTICLE III
 
Miscellaneous
 
   
SECTION 3.01.  Notices
6
SECTION 3.02.  Waivers; Amendment
6
SECTION 3.03.  Administrative Agent’s Fees and Expenses; Indemnification
6
SECTION 3.04.  Representations and Warranties; Survival
6
SECTION 3.05.  Counterparts; Effectiveness; Successors and Assigns
7
SECTION 3.06.  Severability
7
SECTION 3.07.  [Reserved]
7
SECTION 3.08.  Governing Law; Jurisdiction; Consent to Service of Process
8
SECTION 3.09.  Waiver of Jury Trial
8
SECTION 3.10.  Headings
8
SECTION 3.11.  Termination or Release
8
 
 
 
GUARANTY AGREEMENT dated as of October 5, 2015 (this “ Agreement ”), among BLUE CUBE SPINCO INC., a Delaware corporation (the “ Borrower ”), OLIN CORPORATION, a Virginia corporation (the “ Guarantor ”) and WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as administrative agent (the “ Administrative Agent ”).

Reference is made to the Credit Agreement dated as of June 23, 2015 (as amended, restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among the Borrower, the Lenders from time to time party thereto and the Administrative Agent.  The Lenders have agreed to extend credit to the Borrower on the terms and subject to the conditions set forth in the Credit Agreement.  The Guarantor is the direct or indirect parent of the Borrower and will derive substantial benefits from the extension of credit to the Borrower pursuant to the Credit Agreement and is willing to execute and deliver this Agreement in order to induce the Lenders to extend such credit and as consideration for credit previously extended.  Accordingly, the parties hereto agree as follows:

ARTICLE I

Definitions

SECTION 1.01.  Defined Terms .  (a)  Each capitalized term used but not defined herein and defined in the Credit Agreement shall have the meaning specified in the Credit Agreement.

(b)              The rules of construction specified in Section 1.02 of the Credit Agreement also apply to this Agreement, mutatis mutandis .

SECTION 1.02.  Other Defined Terms .  As used in this Agreement, the following terms have the meanings specified below:

“ Agreement ” has the meaning assigned to such term in the Preamble hereto.

“ Borrower ” has the meaning assigned to such term in the Preamble hereto.

“ Credit Agreement ” has the meaning assigned to such term in the Recitals hereto.

“ Guaranteed Obligations ” has the meaning assigned to such term in Section 2.01 .

“ Post-Petition Interest ” has the meaning assigned to such term in Section 2.05(b) .

“ Subordinated Obligations ” has the meaning assigned to such term in Section 2.05 .
ARTICLE II

Guaranty

SECTION 2.01.  Guaranty .  The Guarantor hereby absolutely, unconditionally and irrevocably guarantees the punctual payment when due, whether at scheduled maturity or on any date of a required prepayment or by acceleration, demand or otherwise, of all obligations of the Borrower now or hereafter existing under or in respect of the Credit Agreement and the Notes (including any extensions, modifications, substitutions, amendments or renewals of any or all of the foregoing obligations), whether direct or indirect, absolute or contingent, and whether for principal, interest, premiums, fees, indemnities, contract causes of action, costs, expenses or otherwise (such obligations being the “ Guaranteed Obligations ”).  The Guarantor agrees that its guarantee hereunder constitutes a guarantee of payment and not merely of collection. Without limiting the generality of the foregoing, the liability of the Guarantor shall extend to all amounts that constitute part of the Guaranteed Obligations and would be owed by the Borrower to the Administrative Agent or any Lender under or in respect of the Credit Agreement and the Notes but for the fact that they are unenforceable or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving the Borrower.

SECTION 2.02.  Guaranty Absolute .  The Guarantor guarantees that the Guaranteed Obligations will be paid strictly in accordance with the terms of the Credit Agreement and the Notes, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of the Administrative Agent or any Lender with respect thereto.  The obligations of the Guarantor under or in respect of this Agreement are independent of the Guaranteed Obligations or any other obligations of the Borrower under or in respect of the Credit Agreement and the Notes, and a separate action or actions may be brought and prosecuted against the Guarantor to enforce this Agreement, irrespective of whether any action is brought against the Borrower. The liability of the Guarantor under this Agreement shall be irrevocable, absolute and unconditional irrespective of, and the Guarantor hereby irrevocably waives any defenses it may now have or hereafter acquire in any way relating to, any or all of the following:

(a)              any lack of validity or enforceability of the Credit Agreement, any Note or any agreement or instrument relating thereto;

(b)              any change in the time, manner or place of payment of, or in any other term of, all or any of the Guaranteed Obligations or any other obligations of the Borrower under or in respect of the Credit Agreement and the Notes, or any other amendment or waiver of or any consent to departure from the Credit Agreement or any Note, including any increase in the Guaranteed Obligations resulting from the extension of additional credit to the Borrower or any of its Subsidiaries or otherwise;

(c)              any taking, exchange, release or non-perfection of any collateral, or any taking, release or amendment or waiver of, or consent to departure from, any other guaranty, for all or any of the Guaranteed Obligations;
2
 
(d)              any manner of application of any collateral, or proceeds thereof, to all or any of the Guaranteed Obligations, or any manner of sale or other disposition of any collateral for all or any of the Guaranteed Obligations or any other obligations of the Borrower under the Credit Agreement and the Notes or any other assets of the Borrower or any of its Subsidiaries;

(e)              any change, restructuring or termination of the corporate structure or existence of the Borrower or any of its Subsidiaries;

(f)              any failure of the Administrative Agent or any Lender to disclose to the Guarantor any information relating to the business, condition (financial or otherwise), operations, performance, properties or prospects of the Borrower now or hereafter known to the Administrative Agent or such Lender (the Guarantor waiving any duty on the part of the Administrative Agent and the Lenders to disclose such information);

(g)              the failure of any other Person to execute or deliver this Agreement or any other guaranty or agreement or the release or reduction of liability of the Guarantor or other guarantor or surety with respect to the Guaranteed Obligations; or

(h)              any other circumstance (including any statute of limitations) or any existence of or reliance on any representation by the Administrative Agent or any Lender that might otherwise constitute a defense available to, or a discharge of, the Borrower or any other guarantor or surety.

This Agreement shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Guaranteed Obligations is rescinded or must otherwise be returned by the Administrative Agent or any Lender or any other Person upon the insolvency, bankruptcy or reorganization of the Borrower or otherwise, all as though such payment had not been made.

SECTION 2.03.  Waivers and Acknowledgments .  (a)  The Guarantor hereby unconditionally and irrevocably waives promptness, diligence, notice of acceptance, presentment, demand for performance, notice of nonperformance, default, acceleration, protest or dishonor and any other notice with respect to any of the Guaranteed Obligations and this Agreement and any requirement that the Administrative Agent or any Lender protect, secure, perfect or insure any Lien or any property subject thereto or exhaust any right or take any action against the Borrower, any other guarantor or any other Person or any collateral.The Guarantor hereby unconditionally and irrevocably waives any right to revoke this Agreement and acknowledges that this Agreement is continuing in nature and applies to all Guaranteed Obligations, whether existing now or in the future.

(b)              The Guarantor hereby unconditionally and irrevocably waives (i) any defense arising by reason of any claim or defense based upon an election of remedies by the Administrative Agent or any Lender that in any manner impairs, reduces, releases or otherwise adversely affects the subrogation, reimbursement, exoneration, contribution or indemnification rights of the Guarantor or other rights of the Guarantor to proceed against the Borrower, any other guarantor or any other Person or any collateral and (ii) any defense based on any right of set-off or counterclaim against or in respect of the obligations of the Guarantor hereunder.

(c)              The Guarantor hereby unconditionally and irrevocably waives any duty on the part of the Administrative Agent or any Lender to disclose to the Guarantor any matter, fact or thing relating to the business, condition (financial or otherwise), operations, performance, properties or prospects of the Borrower or any of its Subsidiaries now or hereafter known by the Administrative Agent or such Lender.
3

(d)              The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the financing arrangements contemplated by the Credit Agreement and the Notes and that the waivers set forth in Sections 2.03 and 3.02 of this Agreement are knowingly made in contemplation of such benefits.

SECTION 2.04.  Subrogation .  The Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Borrower or any other insider guarantor that arise from the existence, payment, performance or enforcement of the Guarantor’s obligations under or in respect of this Agreement, including any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Administrative Agent or any Lender against the Borrower, any other guarantor or any other insider guarantor or any collateral, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including the right to take or receive from the Borrower, any other guarantor or any other insider guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, (x) unless and until all of the Guaranteed Obligations shall have been paid in full in cash or (y) unless no Default shall have occurred and be continuing.  If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the later of (a) the payment in full in cash of the Guaranteed Obligations and (b) the Termination Date, such amount shall be received and held in trust for the benefit of the Administrative Agent and the Lenders, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Administrative Agent in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, whether matured or unmatured, in accordance with the terms of the Credit Agreement and the Notes, or to be held as collateral for any Guaranteed Obligations or other amounts payable under this Agreement thereafter arising.  If (i) the Guarantor shall make payment to the Administrative Agent or any Lender of all or any part of the Guaranteed Obligations, (ii) all of the Guaranteed Obligations shall have been paid in full in cash and (iii) the Termination Date shall have occurred, the Administrative Agent and the Lenders will, at such Guarantor’s request and expense, execute and deliver to the Guarantor appropriate documents, without recourse and without representation or warranty, necessary to evidence the transfer by subrogation to the Guarantor of an interest in the Guaranteed Obligations resulting from such payment made by the Guarantor pursuant to this Agreement.

SECTION 2.05.  Subordination .  The Guarantor hereby subordinates any and all debts, liabilities and other obligations owed to the Guarantor by the Borrower (the “ Subordinated Obligations ”) to the Guaranteed Obligations to the extent and in the manner hereinafter set forth in this Section 2.05 :
4

(a)              Prohibited Payments, Etc .  Except during the continuance of an Event of Default (including the commencement and continuation of any proceeding under any Debtor Relief Law relating to the Borrower), the Guarantor may receive regularly scheduled payments from the Borrower on account of the Subordinated Obligations.  After the occurrence and during the continuance of any Event of Default (including the commencement and continuation of any proceeding under any Debtor Relief Law relating to the Borrower), however, unless the Majority Lenders otherwise agree, the Guarantor shall not demand, accept or take any action to collect any payment on account of the Subordinated Obligations.

(b)              Prior Payment of Guaranteed Obligations .  In any proceeding under any Debtor Relief Law relating to the Borrower, the Guarantor agrees that the Administrative Agent and the Lenders shall be entitled to receive payment in full in cash of all Guaranteed Obligations (including all interest and expenses accruing after the commencement of a proceeding under any Debtor Relief Law, whether or not constituting an allowed claim in such proceeding (“ Post-Petition Interest ”)) before such Guarantor receives payment of any Subordinated Obligations.

(c)              Turn-Over .  After the occurrence and during the continuance of any Event of Default (including the commencement and continuation of any proceeding under any Debtor Relief Law relating to the Borrower), the Guarantor shall, if the Administrative Agent so requests, collect, enforce and receive payments on account of the Subordinated Obligations as trustee for the Administrative Agent and the Lenders and deliver such payments to the Administrative Agent on account of the Guaranteed Obligations (including all Post-Petition Interest), together with any necessary endorsements or other instruments of transfer, but without reducing or affecting in any manner the liability of the Guarantor under the other provisions of this Agreement.

(d)              Administrative Agent Authorization .  After the occurrence and during the continuance of any Event of Default (including the commencement and continuation of any proceeding under any Debtor Relief Law relating to the Borrower), the Administrative Agent is authorized and empowered (but without any obligation to so do), in its discretion, (i) in the name of the Guarantor, to collect and enforce, and to submit claims in respect of, Subordinated Obligations and to apply any amounts received thereon to the Guaranteed Obligations (including any and all Post-Petition Interest), and (ii) to require the Guarantor (A) to collect and enforce, and to submit claims in respect of, Subordinated Obligations and (B) to pay any amounts received on such obligations to the Administrative Agent for application to the Guaranteed Obligations (including any and all Post-Petition Interest).

SECTION 2.06.  Continuing Guaranty; Assignments .  This Agreement is a continuing guaranty and shall (a) be binding upon the Guarantor, its successors and assigns and (b) inure to the benefit of and be enforceable by the Administrative Agent and the Lenders and their successors, transferees and assigns.  Without limiting the generality of clause (b) of the immediately preceding sentence, the Administrative Agent or any Lender may assign or otherwise transfer all or any portion of its rights and obligations under this Agreement (including all or any portion of its Commitments, the Advances owing to it and the Note or Notes held by it) to any other Person, and such other Person shall thereupon become vested with all the benefits in respect thereof granted to the Administrative Agent or such Lender herein or otherwise, in each case as and to the extent provided in Section 9.02 of the Credit Agreement.  The Guarantor shall not have the right to assign its rights hereunder or any interest herein without the prior written consent of the Administrative Agent and the Lenders.
5

ARTICLE III

Miscellaneous

SECTION 3.01.  Notices .  All communications and notices hereunder shall (except as otherwise expressly permitted herein) be in writing and given in the manner provided in Section 10.02 of the Credit Agreement.  All communications and notices hereunder to the Guarantor shall be given to it (i) at the address listed under its signature hereto and (ii) in care of the Borrower in the manner provided in Section 10.02 of the Credit Agreement.

SECTION 3.02.  Waivers; Amendment .  (a)  No failure or delay by the Administrative Agent or any Lender in exercising any right or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power.  The rights and remedies of the Administrative Agent and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have.  No waiver of any provision of this Agreement or consent to any departure by the Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 3.02 , and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given.  No notice or demand on any Loan Party in any case shall entitle such Loan Party to any other or further notice or demand in similar or other circumstances.

(b)              Neither this Agreement nor any provision hereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by the Administrative Agent (with the written consent of the Majority Lenders), the Borrower and the Guarantor, subject to any consent required in accordance with Section 10.01 of the Credit Agreement.

SECTION 3.03.  Administrative Agent’s Fees and Expenses; Indemnification .  (a)  The Guarantor agrees to reimburse the Administrative Agent for its fees and expenses incurred hereunder as provided in Section 10.04(a) of the Credit Agreement as if each reference therein to the Company were a reference to the Guarantor.

(b)              The Guarantor agrees to indemnify and hold harmless each Indemnified Party as provided in Section 10.06 of the Credit Agreement as if each reference to the Company therein were a reference to the Guarantor.

(c)              All amounts due under Section 3.03(a) or 3.03(b) shall be payable promptly after written demand therefor.

SECTION 3.04.  Representations and Warranties; Survival .   (a)  Each of the Borrower and the Guarantor represents and warrants to the Administrative Agent and the Lenders that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization except where the failure to do so, individually or in the aggregate, could not reasonably be expected to materially and adversely affect the ability of such Person to perform its obligations under any Loan Document.
6

(b)              Each of the Borrower and the Guarantor represents and warrants to the Administrative Agent and the Lenders that this Agreement has been duly authorized, executed and delivered by it and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and to general principles of equity, regardless of whether considered in a proceeding in equity or at law.

(c)              All covenants, agreements, representations and warranties made by the Borrower or the Guarantor herein shall be considered to have been relied upon by the Administrative Agent and the Lenders and shall survive the execution and delivery of this Agreement and the making of any Advances, regardless of any investigation made by or on behalf of the Administrative Agent, any Lender or any other Person and notwithstanding that the Administrative Agent, any Lender or any other Person may have had notice or knowledge of any default or incorrect representation or warranty at the time any Loan Document is executed and delivered or any credit is extended under the Credit Agreement, and shall continue in full force and effect as long as the principal of or any accrued interest on any Advance or any fee or any other amount payable under the Credit Agreement is outstanding and unpaid and so long as the Commitments have not expired or terminated.  The provisions of this Section 3.04 shall survive and remain in full force and effect regardless of the repayment of the Advances, the expiration or termination of the Commitments or the termination of this Agreement or any provision hereof.

SECTION 3.05.  Counterparts; Effectiveness; Successors and Assigns .  This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original but all of which when taken together shall constitute a single contract.  This Agreement shall be binding upon each party hereto and its successors and assigns, and shall inure to the benefit of each such party and the Lenders and their respective successors and assigns, except that neither the Borrower nor the Guarantor may assign or otherwise transfer any of its rights or obligations hereunder or any interest herein (and any attempted assignment or transfer by any such Person shall be null and void), except as expressly contemplated by this Agreement or the Credit Agreement.  Delivery of an executed counterpart of a signature page of this Agreement by facsimile or other electronic imaging shall be effective as delivery of a manually executed counterpart of this Agreement.

SECTION 3.06.  Severability .  Any provision of this Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.

SECTION 3.07.  [Reserved] .
7

SECTION 3.08.  Governing Law; Jurisdiction; Consent to Service of Process .  (a)  This Agreement shall be governed by, and construed in accordance with, the law of the State of New York.

(b)              Each party hereto irrevocably and unconditionally submits, for itself and its property, to the nonexclusive  jurisdiction of any New York State court or federal court of the United States of America sitting in New York City, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement, or for recognition or enforcement of any judgment, and each of the Borrower and the Guarantor hereby irrevocably and unconditionally agrees that all claims arising out of or relating to this Agreement brought by it or any of its Affiliates may be brought, and may be heard and determined, in such New York State or, to the extent permitted by law, in such Federal court.  Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.  Nothing in this Agreement shall affect any right that any party may otherwise have to bring any action or proceeding relating to this Agreement or any of the other Loan Documents in the courts of any jurisdiction.

(c)              Each of the parties hereto irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection that it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement in any New York State or federal court sitting in New York City.  Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.

(d)              Each party hereto irrevocably consents to service of process in the manner provided for notices in Section 3.01 .  Nothing in this Agreement or any other Loan Document will affect the right of any party to this Agreement to serve process in any other manner permitted by law.

SECTION 3.09.  Waiver of Jury Trial .  Each of the Borrower, the Guarantor and the Administrative Agent (on behalf of itself and the Lenders) hereby irrevocably waives all right to trial by jury in any action, proceeding or counterclaim (whether based on contract, tort or otherwise) arising out of or relating to this Agreement or any of the other Loan Documents or the actions of the Administrative Agent or any Lender in the negotiation, administration, performance or enforcement thereof.

SECTION 3.10.  Headings .  Article and Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement and shall not affect the construction of, or be taken into consideration in interpreting, this Agreement.

SECTION 3.11.  Termination or Release .  (a)  This Agreement and the Guarantee made herein shall terminate, and the Guarantor shall automatically be released from its obligations under this Agreement, upon subject to Section 2.02, the Guaranteed Obligations (other than contingent obligations for indemnification, expense reimbursement, tax gross up or yield protection as to which no claim has been made) having been paid in full in cash and the Lenders having no further commitment to lend under the Credit Agreement.
8

(b)              In connection with any termination or release pursuant to this Section 3.11 , the Administrative Agent shall execute and deliver to the Borrower or the Guarantor, at such Person’s expense, all documents that such Person shall reasonably request to evidence such termination or release.  Any execution and delivery of documents by the Administrative Agent pursuant to this Section 3.11 shall be without recourse to or warranty by the Administrative Agent.
 
 
 
 
 
 
 
 
 
 

 
[Signature Pages Follow]
9
 
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and year first above written.
 
 
BLUE CUBE SPINCO INC.,
 
       
 
By:
/s/ Stephen C. Curley
 
    Name:  Stephen C. Curley  
    Title:    Vice President and Treasurer  
       
 
 
 
 
 
OLIN CORPORATION,
 
       
 
By:
/s/ Stephen C. Curley
 
    Name:  Stephen C. Curley  
    Title:    Vice President and Treasurer  
   
Address:  Olin Corporation
190 Carondelet Plaza, Suite 1530
Clayton, MO  63105-3443
Attn:  Treasury Department 
 
 
 
 
 
 
 
 
 
 
 
[Signature Page to Guaranty Agreement]
 
 
 
WELLS FARGO BANK, NATIONAL ASSOCIATION, as
Administrative Agent,
 
       
 
By:
/s/ Daniel R. Van Aken
 
    Name:  Daniel R. Van Aken  
    Title:    Director  
       
 
 
 
 
 
 
 
 
 
 
 
 
 
 
[Signature Page to Guaranty Agreement]
Exhibit 10.3
 
 
 
BORROWING SUBSIDIARY AGREEMENT
 
BORROWING SUBSIDIARY AGREEMENT (this “ Agreement ”) dated as of October 5, 2015, among OLIN CORPORATION, a Virginia corporation (the “ Company ”), Blue Cube Spinco Inc., a Delaware corporation (the “ New Borrower ”), and WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent for the Lenders referred to below.
 
Reference is made to the Credit Agreement dated as of June 23, 2015 (as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among the Company, Olin Canada ULC, an unlimited company amalgamated under the laws of Nova Scotia, the Lenders from time to time and Wells Fargo Bank, National Association, as Administrative Agent .  Capitalized terms used and not otherwise defined herein have the meanings specified in the Credit Agreement.
 
Under the Credit Agreement, the Lenders have agreed to make Advances and the Issuing Banks have agreed to issue Letters of Credit, in each case upon the terms and subject to the conditions set forth therein, for the accounts of the Borrowers, and the Company and the New Borrower desire that the New Borrower become an “Additional Borrower” and a “Borrower”. Each of the Company and the New Borrower represents and warrants that the representations and warranties of the Company in the Credit Agreement relating to the New Borrower and this Agreement are true and correct on and as of the date hereof.
 
Upon the execution of this Agreement by each of the Company, the New Borrower and the Administrative Agent and the delivery thereof to the Administrative Agent, the New Borrower shall be a party to the Credit Agreement and shall constitute an “Additional Borrower” and a “Borrower” for all purposes thereof; provided   that this Agreement shall not become effective if it shall be unlawful for the New Borrower to become an “Additional Borrower” or a “Borrower” thereunder or for any Lender to make Advances or otherwise extend credit to the New Borrower as provided therein.  The New Borrower hereby agrees to be bound by all provisions of the Credit Agreement as an Additional Borrower and a Borrower thereunder.
 
This Agreement shall be construed in accordance with and governed by the law of the State of New York.
 
[signature pages follow]
 
 
 
 
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their authorized officers as of the date first appearing above.
 
 
 
OLIN CORPORATION,  
 
       
       
 
By:
/s/ Stephen C. Curley  
    Name:  Stephen C. Curley  
    Title:    Vice President and Treasurer  
       
 
 
 
BLUE CUBE SPINCO INC.,
 
       
       
 
By:
/s/ Stephen C. Curley  
    Name:  Stephen C. Curley  
    Title:    Vice President and Treasurer  
       
 
 

[Signature Page to Borrowing Subsidiary Agreement]
 
 
 
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent,
 
       
       
 
By:
/s/ Daniel R. Van Aken  
    Name:  Daniel R. Van Aken  
    Title:    Director  
       
 
 
 
 
 
 
[Signature Page to Borrowing Subsidiary Agreement]
Exhibit 10.4
 
 
 
GUARANTY JOINDER
 
GUARANTY JOINDER (this “ Agreement ”) dated as of October 5, 2015, among OLIN CORPORATION, a Virginia corporation (the “ Borrower ”), BLUE CUBE SPINCO INC., a Delaware corporation (the “ New Guarantor ”), and SUMITOMO MITSUI BANKING CORPORATION, as Administrative Agent for the Lenders referred to below.
 
Reference is made to the Credit Agreement dated as of August 25, 2015 (as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among the Borrower, the subsidiaries of the Borrower that become party to the Credit Agreement pursuant to the terms thereof, the lenders that are party to the Credit Agreement or become party to the Credit Agreement pursuant to the terms thereof and Sumitomo Mitsui Banking Corporation , as Administrative Agent .  Capitalized terms used and not otherwise defined herein have the meanings specified in the Credit Agreement.
 
The Credit Agreement requires the New Guarantor to become a party to the Credit Agreement as a “Guarantor” thereunder and the New Guarantor has agreed to execute and deliver this Agreement in order to become a party to the Credit Agreement as a “Guarantor” thereunder.
 
Each of the Borrower and the New Guarantor represents and warrants that the representations and warranties of the Borrower in the Credit Agreement relating to the New Guarantor and this Agreement are true and correct on and as of the date hereof.
 
Upon the execution of this Agreement by each of the Borrower, the New Guarantor and the Administrative Agent and the delivery thereof to the Administrative Agent and the delivery to the Administrative Agent of (a) all documentation and other information with respect to the New Guarantor required by regulatory authorities and requested by the Administrative Agent under applicable “know your customer” and anti-money laundering rules and regulations, including the Act; (b) if requested by the Administrative Agent, an opinion of counsel of the New Guarantor reasonably acceptable to the Administrative Agent and covering such matters relating to the transactions contemplated hereby relating to the New Guarantor as the Administrative Agent may reasonably request; and (c) such documents and certificates as the Administrative Agent may reasonably request relating to the organization, existence and good standing of the New Guarantor and the authorization of the transactions contemplated hereby relating to the New Guarantor, all in form and substance reasonably satisfactory to the Administrative Agent, the New Guarantor shall be a party to the Credit Agreement and shall constitute a “Guarantor” for all purposes thereof.  The New Guarantor hereby agrees to be bound by all provisions of the Credit Agreement as a Guarantor thereunder.
 
This Agreement shall be construed in accordance with and governed by the law of the State of New York.
 
 
[signature pages follow]
 
 
 
 
 
 
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their authorized officers as of the date first appearing above.
 
 
 
OLIN CORPORATION,
 
       
       
 
By:
/s/ Stephen C. Curley  
    Name:  Stephen C. Curley  
    Title:    Vice President and Treasurer  
       
 
 
 
BLUE CUBE SPINCO INC.,
 
       
       
 
By:
/s/ Stephen C. Curley  
    Name:  Stephen C. Curley  
    Title:    Vice President and Treasurer  
       
 
 
 
 
[Signature Page to Guaranty Joinder]
 
 
 
SUMITOMO MITSUI BANKING CORPORATION,
as Administrative Agent,
 
       
       
 
By:
/s/ Katsuyuki Kubo  
    Name:  Katsuyuki Kubo  
    Title:    Managing Director  
       
 
 
 
 
 
 
[Signature Page to Guaranty Joinder]
Exhibit 10.5
 
 
AMENDMENT AGREEMENT dated as of June 23, 2015 (this “ Agreement ”), among Olin Corporation, a Virginia corporation (the “ Company ”), Olin Canada ULC, an unlimited company amalgamated under the laws of Nova Scotia (the “ Canadian Borrower ”), Blue Cube Spinco Inc., a Delaware corporation (the “ Spinco Borrower ”), the lenders listed on the signature pages hereof (the “ Lenders ”) and Wells Fargo Bank, National Association (“ WFB ”), as administrative agent under each of the Existing Credit Agreements referred to below (in such capacities, the “ Administrative Agent ”).

A.  Pursuant to the Credit Agreement dated as of June 23, 2015 (the “ Olin Credit Agreement ”), among the Company, the Canadian Borrower, the lenders party thereto (the “ Olin Lenders ”) and WFB, as administrative agent, the Olin Lenders have extended, and have agreed to extend, credit to the Company and the Canadian Borrower.

B.  Pursuant to the Credit Agreement dated as of June 23, 2015 (the “ Spinco Credit Agreement ” and together with the Olin Credit Agreement, the “ Existing Credit Agreements ”), among the Spinco Borrower, the lenders party thereto (the “ Spinco Lenders ” and, together with the Olin Lenders, the “ Lenders ”) and WFB, as administrative agent, the Spinco Lenders have extended, and have agreed to extend, credit to Spinco.

C.  Each of the parties hereto desires to combine the two Existing Credit Agreements by amending and restating them in their entirety in the form of the single Amended and Restated Credit Agreement attached hereto as Exhibit A (the “ Restated Credit Agreement ”).

D.  The Lenders party hereto, constituting all of the Lenders under the Existing Credit Agreements on the date hereof, are willing to so amend and restate the Existing Credit Agreements on the terms and subject to the conditions set forth herein and in the Restated Credit Agreement.

E.  Accordingly, in consideration of the mutual agreements contained herein and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties hereto hereby agree as follows:

SECTION 1.  Defined Terms .  Capitalized terms used but not defined herein shall have the meanings given to them in the Restated Credit Agreement.  The rules of interpretation set forth in Section 1.02 of the Restated Credit Agreement are hereby incorporated by reference herein, mutatis mutandis .

SECTION 2.  Conversion of Olin Term Loans; Amendment and Restatement of the Existing Credit Agreements .  (a)  On the Restatement Date (as defined below), immediately after the funding of the Initial Term Loans (as defined in the Olin Credit Agreement), for the convenience of the parties hereto, each Olin Lender’s Initial Term Loan (as defined in the Olin Credit Agreement) shall be converted into an Initial Term Loan under the Restated Credit Agreement in the like principal amount to the Spinco Borrower, such that (i) upon such conversion, each Lender shall be deemed to have made an aggregate principal amount of Initial Term Loans to the Spinco Borrower equal to the sum of the aggregate principal amount of (x) such Lender’s Initial Term Loan (as defined in the Olin Credit Agreement) made to Olin plus (y) such Lender’s Initial Term Loan (as defined in the Spinco Credit Agreement) made to Spinco, and (ii) after giving effect to such conversion, the Initial Term Loans (as defined in the Olin Credit Agreement) shall cease to be outstanding.  In connection with the foregoing, the Spinco Borrower hereby assumes all of the obligations of Olin under the Olin Credit Agreement in respect of the Initial Term Loans (as defined in the Olin Credit Agreement), and the Lenders and the Administrative Agent hereby consent to such assumption.  All of the Initial Terms Loans outstanding under the Restated Credit Agreement on the Restatement Date (including as a result of the conversion described above) shall constitute a single class of term loans and shall have the terms and conditions set forth in the Restated Credit Agreement.
 
 
 
(b)  The parties hereto hereby agree that the Olin Credit Agreement (including all exhibits and schedules thereto) and the Spinco Credit Agreement (including all exhibits and schedules thereto) are hereby amended and restated, effective as of the Restatement Date to read in their entirety as a single, combined credit agreement in the form of the Restated Credit Agreement attached as Exhibit A hereto.  As used in the Restated Credit Agreement, the terms “Agreement”, “this Agreement”, “herein”, “hereinafter”, “hereto”, “hereof” and words of similar import shall, unless the context otherwise requires, from and after the Restatement Date, mean or refer to the Restated Credit Agreement.  As used in any other Loan Document, from and after the Restatement Date, all references to the Credit Agreement in such Loan Documents shall, unless the context otherwise requires, mean or refer to the Restated Credit Agreement.

(c)  The parties hereto authorize the Administrative Agent to make such changes to Exhibit A (including Schedule 2.01(b) thereto) as may be necessary to reflect the loans and commitments outstanding under the Existing Credit Agreements (and accordingly, the Restated Credit Agreement) on the Restatement Date, which may include changes to account for assignments of loans or commitments, voluntary commitment reductions or incremental commitment increases, in each case in accordance with the Existing Credit Agreements.

SECTION 3.  Representations and Warranties . Effective on the Restatement Date, the Company represents and warrants to each of the Lenders and the Administrative Agent that (a) the execution, delivery and performance by each of the Company, the Spinco Borrower and the Canadian Borrower of this Agreement (i) is within such Person’s corporate powers, (ii) have been duly authorized by all necessary corporate action and (iii) do not (x) contravene such Person’s charter, articles or by-laws or (y) contravene law (including Regulations T, U and X issued by the Board of Governors of the Federal Reserve Board) or any material contractual restriction binding on or affecting such Person or (z) result in or require the creation or imposition of any Lien upon or with respect to any of the properties of the Company or any of its Subsidiaries; (b) after giving effect to this Agreement, the representations and warranties set forth in Section 4.01 of the Restated Credit Agreement and in each other Loan Document are true and correct in all material respects on and as of the Restatement Date, except to the extent such representations and warranties expressly relate to an earlier date, in which case they were true and correct in all material respects on and as of such earlier date; provided that, in each case, such materiality qualifier shall not be applicable to any representation and warranty that already is qualified or modified by materiality in the text thereof; and (c) as of the Restatement Date, after giving effect to this Agreement, no Default or Event of Default has occurred and is continuing.
 
 
 
 
SECTION 4.  Conditions Precedent to the Effectiveness of this Agreement .  This Agreement shall become effective on the first date (the “ Restatement Date ”) on which (a) the Administrative Agent shall have received counterparts of this Agreement that, when taken together, bear the signatures of (1) the Company, (2) the Spinco Borrower, (3) the Canadian Borrower, (4) the Administrative Agent and (5) each Lender, (b) the Merger shall have been consummated and (c) the Lenders shall have made the Initial Term Loans (as defined in the Olin Credit Agreement) to Olin.

SECTION 5.  No Waivers.   The execution, delivery and effectiveness of this Agreement shall not operate as a waiver of any right, power or remedy of any Lender or the Administrative Agent under any of the Loan Documents, nor constitute a waiver of any provision of the Loan Documents or in any way limit, impair or otherwise affect the rights and remedies of the Administrative Agent or the Lenders under the Loan Documents.  Nothing herein shall be deemed to entitle any Borrower to a consent to, or a waiver, amendment, modification or other change of, any of the terms, conditions, obligations, covenants or agreements contained in the Restated Credit Agreement or any other Loan Document in similar or different circumstances.  Nothing expressed or implied in this Agreement shall be construed as a release or other discharge of any Borrower under any Loan Document from any of its obligations and liabilities thereunder (other than, for the avoidance of doubt, Olin from its obligations as borrower in respect of the Initial Term Loans (as defined in the Olin Credit Agreement) ).

SECTION 6.  Applicable Law . THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. The provisions of Sections 10.07 and 10.10 of the Restated Credit Agreement shall apply to this Agreement to the same extent as if fully set forth herein.

SECTION 7.  Notices .  Prior to the Restatement Date, all notices hereunder shall be given in accordance with the provisions of Section 10.02 of the Olin Credit Agreement.  Thereafter, notices shall be given in accordance with the Restated Credit Agreement.

SECTION 8.  Counterparts .  This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original but all of which when taken together shall constitute a single contract, and shall become effective as provided in Section 4 hereof.  Delivery of an executed counterpart of a signature page to this Agreement by facsimile or in electronic (i.e., “pdf” or “tif”) format shall be effective as delivery of a manually executed counterpart of this Agreement.

SECTION 9.  Headings .  Section headings used herein are for convenience of reference only, are not part of this Agreement and are not to affect the construction of, or to be taken into consideration in interpreting, this Agreement.

[Remainder of this page intentionally left blank]

IN WITNESS WHEREOF , the parties hereto have caused this Agreement to be duly executed as of the date first above written.

OLIN CORPORATION,
 
by
 
/s/ Stephen C. Curley
 
Name:    Stephen C. Curley
 
Title:     Vice President and Treasurer



OLIN CANADA ULC,
 
by
 
/s/ Stephen C. Curley
 
Name:    Stephen C. Curley
 
Title:      Vice President and Treasurer

 
 
 
 
 
[Signature Page to Amendment Agreement]

BLUE CUBE SPINCO INC.,
 
by
 
/s/ Stephen C. Curley
 
Name:    Stephen C. Curley
 
Title:     V ice President and Treasurer
 
 
 
 
[Signature Page to Amendment Agreement]


WELLS FARGO BANK, NATIONAL ASSOCIATION,
individually, and as Administrative Agent
under each Existing Credit Agreement
 
by
 
/s/ Peter R. Martinets
 
Name:     Peter R. Martinets
 
Title:      Managing Director
 
 
 
 
 
[Signature Page to Amendment Agreement]


 
  		Name of Institution:  
WELLS FARGO BANK,
NATIONAL ASSOCIATION
 
 
 
   
 
by
/s/ Peter R. Martinets
 
   
Name:    Peter R. Martinets
   
Title:     Managing Director
 
 
 
 
 
Olin Corporation
Credit Agreement
Signature Pages

 

 
 
Name of Institution:
JPMORGAN CHASE BANK, N.A.
 
     
     
 
by
/s/ Krys Szremski
 
   
Name:    Krys Szremski
   
Title:     Vice President
 
 
 
 
 
Olin Corporation
Credit Agreement
Signature Pages


 
 
 
Name of Institution:  
JPMORGAN CHASE BANK, N.A.,. TORONTO BRANCH
 
 
     
     
 
by
/s/ Michael N. Tam
 
   
Name:    M ichael N. Tam
   
Title:       Senior Vice President

 
 
 
 
Olin Corporation
Credit Agreement
Signature Pages

 
 
Name of Institution:   
BANK OF AMERICA, N.A.
 
 
     
     
 
by
/s/ Eric A. Escagne
 
   
Name:   Eric A. Escagne
   
Title:     Senior Vice President

 
 
 
 
Olin Corporation
Credit Agreement
Signature Pages

 
 
 
Name of Institution:  
CITIBANK, N.A.
 
 
     
     
 
by
/s/ Michael Vondriska
 
   
Name:   Michael Vondriska
   
Title:     Vice President

 
 
 
 
 
Olin Corporation
Credit Agreement
Signature Pages
 
 

 
 
Name of Institution:  
PNC Bank, National Association
 
 
     
     
 
by
/s/ Thomas S. Sherman
 
   
Name:    Thomas S. Sherman
   
Title:     Senior Vice President
 
 
 
 
 
Olin Corporation
Credit Agreement
Signature Pages

 

 
 
Name of Institution:  
The Bank of Tokyo-Mitsubishi UFJ, Ltd.
 
 
     
     
 
by
/s/ Victor Pierzchalski
 
   
Name:    Victor Pierzchalski
   
Title:     Authorized Signatory

 
 
 
 
Olin Corporation
Credit Agreement
Signature Pages
 

 
 
 
 
 
Name of Institution:
 
 
Sumitomo Mitsui Banking Corporation
 
 
     
     
 
by
/s/ David W. Kee
 
   
Name:     David W. Kee
   
Title:      Managing Director

 
 
 
 
 
Olin Corporation
Credit Agreement
Signature Pages

 
 
 
 
Name of Institution:
 
 
The Bank of Nova Scotia
 
 
     
     
 
by
/s/ Rafael Tobon
 
   
Name:     Rafael Tobon
   
Title:      Director
 
 
 
 
Olin Corporation
Credit Agreement
Signature Pages


 
 
 
 
Name of Institution:
 
 
Mizuho Bank, Ltd.
 
 
     
     
 
by
/s/ Donna DeMagistris
 
   
Name:              Donna DeMagistris
   
Title:              Authorized Signatory

 
 
 
 
 
Olin Corporation
Credit Agreement
Signature Pages

 
 
 
 
Name of Institution:
 
 
Santander Bank, N.A.
 
 
     
     
 
by
/s/ John W. Deegan
 
   
Name:   John W. Deegan
   
Title:      Executive Director
 
 
 
 
 
 
Olin Corporation
Credit Agreement
Signature Pages


 
 
 
 
Name of Institution:
 
 
The Toronto-Dominion Bank
 
 
     
     
 
by
/s/ Andrew Chiodo
 
    Name:   Andrew Chiodo  
   
Title:    
AVP, Credit  
      National Accounts  
       
       
         by
/s/ Scott Stewart
 
    Name: Scott Stewart  
    Title: Senior Analyst  
      National Accounts   


 
 
 
 
 
Olin Corporation
Credit Agreement
Signature Pages

 

 
 
 
 
Name of Institution:
 
 
Northern Trust Company
 
 
     
     
 
by
/s/ John Canty
 
   
Name:    John Canty
   
Title:     Senior Vice President

 
 
 
 
Olin Corporation
Credit Agreement
Signature Pages

 
 
 
 
 
Name of Institution: 
 
 
SunTrust Bank
 
 
     
     
 
by
/s/ Chris Hursey
 
   
Name:    Chris Hursey
   
Title:     Director
 
 
 
 
 
 
Olin Corporation
Credit Agreement
Signature Pages


 
 
 
 
Name of Institution:
 
 
Branch Banking and Trust Company
 
 
     
     
 
by
/s/ John P. Malloy
 
   
Name:    John P. Malloy
   
Title:      Senior Vice President
 
 
 
 
 

 
Olin Corporation
Credit Agreement
Signature Pages
 
EXHIBIT A TO AMENDMENT AGREEMENT
 
 
 
 
Published CUSIP Number:
68066LAP6
 
Revolving Advance CUSIP Number:
68066LAQ4
 
Term Loan CUSIP Number:
68066LAR2
 
US$1,850,000,000

AMENDED AND RESTATED

CREDIT AGREEMENT

Dated as of October 5, 2015

Among

OLIN CORPORATION,

BLUE CUBE SPINCO INC.

and

OLIN CANADA ULC

as Borrowers

THE LENDERS NAMED HEREIN

as Lenders

WELLS FARGO BANK, NATIONAL ASSOCIATION

as Administrative Agent

JPMORGAN CHASE BANK, N.A.

as Syndication Agent

CITIBANK, N.A.

BANK OF AMERICA, N.A.,

PNC BANK, NATIONAL ASSOCIATION,

THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.

and

SUMITOMO MITSUI BANKING CORPORATION

as Documentation Agents
 
WELLS FARGO SECURITIES, LLC, J.P. MORGAN SECURITIES LLC, CITIGROUP GLOBAL MARKETS INC.,
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED and PNC CAPITAL MARKETS LLC
 
as Lead Arrangers and Lead Bookrunners
 
 
Table of Contents
 
Page
 
 
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1
     
 
Section 1.01
Certain Defined Terms
1
       
 
Section 1.02
Other Definitions and Provisions
28
       
 
Section 1.03
Computation of Time Periods
28
       
 
Section 1.04
Accounting Terms
29
       
 
Section 1.05
Currency Translation
29
       
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES AND LETTERS OF CREDIT
29
     
 
Section 2.01
The Revolving Advances, Letters of Credit and Initial Term Loans
29
       
 
Section 2.02
Making the Advances
30
       
 
Section 2.03
Fees
39
       
 
Section 2.04
Reduction, Increase and Extension of the Commitments/Incremental Term Loans/Substitution of Lenders
40
       
 
Section 2.05
Repayment
45
       
 
Section 2.06
Interest
46
       
 
Section 2.07
Additional Interest on Eurodollar Rate Advances
47
       
 
Section 2.08
Interest Rate Determination
47
       
 
Section 2.09
Prepayments
48
       
 
Section 2.10
Increased Costs
48
       
 
Section 2.11
Payments and Computations
50
       
 
Section 2.12
Evidence of Indebtedness
52
       
 
Section 2.13
Sharing of Payments, Etc.
52
       
 
Section 2.14
Taxes
53
       
 
Section 2.15
Interest Elections
56
       
 
Section 2.16
[Reserved]
58
       
 
Section 2.17
Mitigation Obligations; Replacement of Lenders
58
       
 
Section 2.18
Cash Collateral
59

 
-i-
Table of Contents
(continued)


 
Section 2.19
Defaulting Lenders
60
       
ARTICLE III
CONDITIONS OF LENDING
62
     
 
Section 3.01
[Reserved]
62
       
 
Section 3.02
Conditions Precedent to Each Borrowing Increasing the Aggregate Amount of Advances and each Letter of Credit Issuance
62
       
 
Section 3.03
Conditions Precedent to Each Bid Borrowing
63
       
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
63
     
 
Section 4.01
Representations and Warranties of the Company
63
       
ARTICLE V
COVENANTS OF THE COMPANY
66
     
 
Section 5.01
Affirmative Covenants
66
       
 
Section 5.02
Negative Covenants
68
       
ARTICLE VI
EVENTS OF DEFAULT
72
     
 
Section 6.01
Events of Default
72
       
 
Section 6.02
Actions in Respect of the Letters of Credit upon Event of Default
73
       
 
Section 6.03
Administrative Agent May File Proofs of Claim
74
       
ARTICLE VII
GUARANTY
75
     
 
Section 7.01
Guaranty
75
       
 
Section 7.02
Guaranty Absolute
75
       
 
Section 7.03
Waivers and Acknowledgments
76
       
 
Section 7.04
Subrogation
77
       
 
Section 7.05
Subordination
77
       
 
Section 7.06
Continuing Guaranty; Assignments
78
       
ARTICLE VIII
THE AGENT
78
     
 
Section 8.01
Appointment and Authority
78
       
 
Section 8.02
Reliance by the Administrative Agent
79
       
 
Section 8.03
Rights as a Lender
79

-ii-
Table of Contents
(continued)



 
Section 8.04
Exculpatory Provisions
79
       
 
Section 8.05
Non-Reliance on Administrative Agent and Other Lenders
80
       
 
Section 8.06
Indemnification
80
       
 
Section 8.07
Successor Agent
81
       
 
Section 8.08
No Other Duties, Etc.
81
       
 
Section 8.09
Delegation of Duties
82
       
 
Section 8.10
Other Agents
82
       
ARTICLE IX
SUCCESSORS, ASSIGNS AND PARTICIPATIONS
82
     
 
Section 9.01
Binding Effect
82
       
 
Section 9.02
Assignments
82
       
 
Section 9.03
Participations
84
       
 
Section 9.04
Pledge
85
       
ARTICLE X
MISCELLANEOUS
86
     
 
Section 10.01
Amendments, Etc.
86
       
 
Section 10.02
Notices, Effectiveness, Electronic Communication
87
       
 
Section 10.03
No Waiver; Remedies
89
       
 
Section 10.04
Costs and Expenses; Damage Waiver
89
       
 
Section 10.05
Right of Set-off
90
       
 
Section 10.06
Indemnification by Company
90
       
 
Section 10.07
Governing Law
91
       
 
Section 10.08
Execution in Counterparts; Integration; Effectiveness
91
       
 
Section 10.09
Special Prepayment Right
91
       
 
Section 10.10
Jurisdiction, Etc.
92
       
 
Section 10.11
No Liability of the Issuing Banks
92
       
 
Section 10.12
Confidentiality
93

-iii-

Table of Contents
(continued)


 
Section 10.13
Patriot Act, Etc.
94
       
 
Section 10.14
Judgment
94
       
 
Section 10.15
Waiver of Jury Trial
95
       
 
Section 10.16
Acknowledgments
95
       
 
Section 10.17
Additional Borrowers
95
 
-iv-
 
Table of Contents

 

Schedule I
-
List of Commitments and Applicable Lending Offices
Schedule 10.02
-
Notice Addresses


Exhibit A-1
-
Revolving Note
Exhibit A-2
-
Bid Note
Exhibit A-3
-
Term Loan Note
Exhibit B-1
-
Notice of Borrowing
Exhibit B-2
-
Notice of Bid Borrowing
Exhibit C
-
Assignment and Assumption
Exhibit D
-
Assumption Agreement
Exhibit E
-
Tax Compliance Certificates
Exhibit F
-
[Reserved]
Exhibit G-1
-
Borrowing Subsidiary Agreement
Exhibit G-2
-
Borrowing Subsidiary Termination

-v-
CREDIT AGREEMENT

Dated as of October 5, 2015

OLIN CORPORATION, a Virginia corporation (the “ Company ”), BLUE CUBE SPINCO, INC., a Delaware corporation, as the survivor of the Merger (as defined below) (the “ Spinco Borrower ”), OLIN CANADA ULC, an unlimited company amalgamated under the laws of Nova Scotia (the “ Canadian Borrower ”), the lenders and issuers of letters of credit that are party to this Agreement or become party to this Agreement pursuant to the terms hereof and WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as administrative agent (the “ Administrative Agent ”) for the Lenders and Issuing Banks, hereby agree as follows:

ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS

Section 1.01      Certain Defined Terms .  As used in this Agreement, the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined):

“ 30-Day Eurodollar Rate ” has the meaning set forth in the definition of “Base Rate”.

“ Acquisition ” means any acquisition by the Company or any of its Subsidiaries of all or substantially all of the capital stock of, or all or a substantial part of the assets of, or of a business unit or division of, any Person.

“ Act ” has the meaning specified in Section 10.13 .
“ Additional Borrower ” means, subject to Section 10.17(b), any Subsidiary of the Company that becomes a party hereto as a Borrower pursuant to Section 10.17.
“ Administrative Agent ” has the meaning set forth in the introductory paragraph hereto.
“ Administrative Agent’s Account ” means the account(s) of the Administrative Agent, as applicable, designated in writing by the Administrative Agent.
“ Administrative Questionnaire ” means an administrative questionnaire in a form supplied by the Administrative Agent.
“ Advance ” means a Revolving Advance, a Bid Advance or a Term Loan.
“ Affiliate ” means, when used with respect to any Person, any other Person directly or indirectly controlling, controlled by or under common control with such Person.  The term “control” (including the terms “controlled by” or “under common control with”) means the possession, directly or indirectly, of the power, whether or not exercised, to direct or cause the direction of the management and policies of any Person, whether through ownership of voting securities or by contract or otherwise.
“ Agreement ” means this Credit Agreement, as amended, restated or otherwise modified from time to time.
“ Alternative Currency ” means any currency other than US Dollars which is (a) readily available and freely transferable and convertible into US Dollars and (b) available in the London interbank deposit market.
“ Alternative Currency Sublimit ” means US$150,000,000.
“ Amendment Agreement ” means the Amendment Agreement dated as of June 23, 2015, among the Company, the Canadian Borrower, the Spinco Borrower, the lenders party thereto and Wells Fargo, as the administrative under each of the Existing Credit Agreements (as defined therein).
“ Anti-Corruption Laws ” means all laws, rules and regulations of any jurisdiction applicable to the Company or its Subsidiaries from time to time concerning or relating to bribery or corruption.
“ Applicable Lending Office ” means, with respect to each Revolving Lender or Term Loan Lender, such Lender’s Domestic Lending Office in the case of a Base Rate Advance and such Lender’s Eurodollar Lending Office in the case of a Eurodollar Rate Advance.
“ Applicable Margin ” means, as of any date of determination, a rate per annum determined by reference to the Performance Level applicable on such date as set forth below:
Performance Level
Applicable Margin for
Base Rate Advances
Applicable Margin for Eurodollar Rate Advances
I
0.25%
1.25%
II
0.50%
1.50%
III
0.75%
1.75%
IV
1.00%
2.00%
“ Approved Fund ” means any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary course of its business and that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
“ Arrangers ” means Wells Fargo Securities, LLC, J.P. Morgan Securities LLC, Citigroup Global Markets Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated and PNC Capital Markets LLC, in their capacities as lead arrangers and lead bookrunners.
“ Assignment and Assumption ” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 9.02 ), and accepted by the Administrative Agent, in substantially the form of Exhibit C hereto or any other form approved by the Administrative Agent and otherwise in accordance with Article IX .
“ Assuming Lender or Lenders ” has the meaning specified in Section 2.04(c) .
“ Assumption Agreement ” has the meaning specified in Section 2.04(c) .
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“ Available Amount ” of any Letter of Credit means, at any time, the maximum amount available to be drawn under such Letter of Credit at such time (assuming compliance at such time with all conditions to drawing).
“ Base Rate ” means, for any day, a fluctuating interest rate per annum as shall be in effect from time to time which rate per annum shall at all times be equal to the highest of:
(a)              The rate of interest per annum publicly announced from time to time by the Administrative Agent as its prime rate;

(b)              The sum (adjusted to the nearest 1/100 of one percent or, if there is no nearest 1/100 of one percent, to the next higher 1/100 of one percent) of (i) 1/2 of one percent per annum, plus (ii) the Federal Funds Rate; or

(c)              The sum of (i) the Eurodollar Rate for an interest period of one month (the “ 30-Day Eurodollar Rate ”), plus (ii) one percent per annum.

Each change in the prime rate, the Federal Funds Rate or the 30-Day Eurodollar Rate shall be effective as of the opening of business on the day such change occurs.  The parties hereto acknowledge that the rate announced publicly by the Administrative Agent as its prime rate is an index or base rate and shall not necessarily be its lowest or best rate charged to its customers or other banks.
 
“ Base Rate Advance ” means any Term Loan or Revolving Advance denominated in US Dollars which bears interest as provided in Section 2.06(a) .
“ Bid Advance ” means an advance by a Revolving Lender to the Company pursuant to the auction bidding procedure described in Section 2.02(d) .
“ Bid Borrowing ” means a borrowing consisting of simultaneous Bid Advances from each of the Revolving Lenders whose offer to make such Bid Advances has been accepted under the auction bidding procedure described in Section 2.02(d) .
“ Bid Note ” means a promissory note of the Company payable to any Revolving Lender and its registered assigns, in substantially the form of Exhibit A-2 hereto, evidencing the Indebtedness of the Company to such Lender resulting from a Bid Advance made by such Lender.
“ Borrowers ” means, collectively, the Company, the Canadian Borrower, the Spinco Borrower and any Additional Borrower.
“ Borrowing Minimum ” means (a) in respect of Advances denominated in US Dollars, US$10,000,000, (b) in respect of Advances denominated in Canadian Dollars, CN$5,000,000, (c) in respect of Advances denominated in Euros, €10,000,000, (d) in respect of Advances denominated in Swiss Francs, SFr10,000,000 and (e) in the case of Advances denominated in any Designated Alternative Currency, the smallest amount of such currency that is an integral multiple of 5,000,000 units of currency and that has a US Dollar Equivalent in excess of US$10,000,000.
“ Borrowing Multiple ” means (a) in respect of Advances denominated in US Dollars, US$1,000,000, (b) in respect of Advances denominated in Canadian Dollars, CN$1,000,000, (c) in respect of Advances denominated in Euros, €1,000,000, (d) in respect of Advances denominated in Swiss Francs, SFr1,000,000 and (e) in the case of Advances denominated in any Designated Alternative Currency, the smallest amount of such currency that is an integral multiple of 1,000,000 units of currency.
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“ Borrowing Subsidiary Agreement ” means a Borrowing Subsidiary Agreement substantially in the form of Exhibit G-1, with such changes thereto as may be reasonably acceptable to the Administrative Agent and the Company.
“ Borrowing Subsidiary Termination ” means a Borrowing Subsidiary Termination substantially in the form of Exhibit G-2, with such changes thereto as may be reasonably acceptable to the Administrative Agent and the Company.
“ Business ” has the meaning assigned to such term in the Separation Agreement.
“ Business Day ” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed; provided that when used in connection with (a) a Eurodollar Rate Advance denominated in US Dollars, the term “Business Day” shall also exclude any day on which banks are not open for dealings in US Dollar deposits in the London interbank market, (b) a Eurodollar Rate Advance denominated in Euros, the term “Business Day” shall also exclude any day that is not a TARGET Day and (c) a Eurodollar Rate Advance denominated in any Committed Alternative Currency other than Euros, the term “Business Day” shall also exclude any day on which banks are not open for dealings in such Committed Alternative Currency deposits in the interbank market in the capital city of the country whose lawful currency is such Committed Alternative Currency.
“ Calculation Date ” has the meaning set forth in Section 1.05 .
“ Canadian Borrower ” has the meaning set forth in the introductory paragraph hereto.
“ Canadian Dollars ” and “ CN$ ” each means lawful currency of Canada.
“ Canadian Interbank Rate ” means the interest rate, expressed as a percentage per annum, which is customarily used by the Administrative Agent when calculating interest due by it or owing to it arising from or in connection with correction of errors between it and other Canadian chartered banks.
“ Capital Lease Obligations ” of any Person means the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP.
“ Cash Collateralize ” means, to deposit in a L/C Cash Collateral Account or to pledge and deposit with, or deliver to, the Administrative Agent, for the benefit of the applicable Issuing Banks or the Lenders, as collateral for L/C Obligations or obligations of the Lenders to fund participations in respect of L/C Obligations, cash or deposit account balances or, if the Administrative Agent and each applicable Issuing Bank shall agree, in their sole discretion, other credit support, in each case pursuant to documentation in form and substance reasonably satisfactory to the Administrative Agent and the applicable Issuing Banks.  “ Cash Collateral ” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.
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“ CDOR Screen Rate ” has the meaning set forth in the definition of “Eurodollar Rate”.
“ Change in Law ” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a Change in Law, regardless of the date enacted, adopted or issued.
“ Closing Date ” means the date on which the Initial Term Loans funded, which date is October 5, 2015.
“ Code ” means the Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated and rulings issued thereunder.
“ Commitment ” means a Term Loan Commitment, a Revolving Commitment or a Letter of Credit Commitment.
“ Commitment Date ” has the meaning specified in Section 2.04(d)(ii) .
“ Commitment Fee Rate ” means, as of any date of determination, a rate per annum determined by reference to the Performance Level applicable on such date as set forth below:
Performance Level
Commitment Fee Rate
I
0.175%
II
0.200%
III
0.250%
IV
0.300%

“ Committed Alternative Currencies ” means Canadian Dollars, Euros, Swiss Francs and any Designated Alternative Currencies.
“ Company ” has the meaning set forth in the introductory paragraph hereto.
“ Confidential Information ” has the meaning specified in Section 10.12.
“ Connection Income Taxes ” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
“ Consolidated Cost Savings ” means, for any period, those synergies, operating expense reductions and cost-savings of the Company and its Subsidiaries that are reasonably identifiable, factually supportable and projected by the Company in good faith to be realized following the Closing Date as a result of restructurings, reorganizations, divestitures, cost savings initiatives, production rationalizations and other similar initiatives, in each case to the extent not prohibited by this Agreement (collectively, “ Initiatives ”) (calculated on a pro forma basis as if such synergies, operating expense reductions and cost-savings had been realized on the first day of such period, and net of the amount of actual benefits realized during such period from such Initiatives to the extent already included in Consolidated Net Income for such period); provided that (i) no synergies, operating expense reductions or cost-savings shall be added to Consolidated EBITDA pursuant to clause (e) thereof to the extent duplicative of any expenses or charges otherwise added to (or excluded from) Consolidated EBITDA, whether through a pro forma adjustment or otherwise, for such period, (ii) projected amounts (and not yet realized) (x) may be added (the date on which such amounts are added, the “ Initiative Commencement Date ”) once actions in respect of such Initiative have been taken or are expected to be taken (in the good faith determination of the Borrower) within 12 months and (y) may no longer be added back in calculating Consolidated EBITDA pursuant to clause (e) thereof to the extent occurring more than six full fiscal quarters after the Initiative Commencement Date and (iii) Consolidated Cost Savings in respect of the Merger shall be determined in a manner consistent with the manner in which synergies, operating expense reductions and cost-savings were included in the calculation of Consolidated EBITDA for purposes of clause (A) of the last sentence of “Consolidated EBITDA”.
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“ Consolidated EBITDA ” means, for any period, Consolidated Net Income for such period (adjusted to exclude all extraordinary or unusual items and any gains or losses on sales of assets outside the ordinary course of business) plus , without duplication and (except with respect to synergies included in Consolidated Cost Savings) to the extent deducted in calculating such Consolidated Net Income for such period, the sum of (a) income tax expense, (b) interest expense, amortization or writeoff of debt discount with respect to Indebtedness (including the Advances), (c) depreciation and amortization expense, (d) amortization of intangibles (including, but not limited to, goodwill) and organization costs, (e) Consolidated Cost Savings; provided that with respect to any period, the aggregate amount added back in the calculation of Consolidated EBITDA for such period pursuant to this clause (e) and clause (f) below shall not exceed (x) for any period ended on or prior to December 31, 2016, 20% of Consolidated EBITDA and (y) otherwise, 15% of Consolidated EBITDA (in each case calculated prior to giving effect to any add-backs pursuant to this clause (e) and clause (f) below), (f) costs and expenses incurred in connection with the implementation of Initiatives; provided that with respect to any period, the aggregate amount added back in the calculation of Consolidated EBITDA for such period pursuant to this clause (f) and clause (e) above shall not exceed (x) for any period ended on or prior to December 31, 2016, 20% of Consolidated EBITDA and (y) otherwise, 15% of Consolidated EBITDA (in each case calculated prior to giving effect to any add-backs pursuant to this clause (f) and clause (e) above), (g) Consolidated Transaction Costs; provided that the aggregate amount added back in the calculation of Consolidated EBITDA pursuant to this clause (g) shall not exceed $100,000,000, (h) all payments triggered in respect of the Company’s non-qualified deferred compensation and post-retirement benefit plans in connection with the Transactions during such period and (i) any other non-cash charges, minus , (i) any cash payments made during such period in respect of items described in clause (i) above subsequent to the fiscal quarter in which the relevant non-cash charge was reflected as a charge in the statement of Consolidated Net Income and (ii) to the extent included in calculating such Consolidated Net Income for such period, any non-cash income (other than amounts accrued in the ordinary course of business under accrual-based revenue recognition procedures in accordance with GAAP).  For the purposes of calculating Consolidated EBITDA for any Reference Period pursuant to any determination of the Consolidated Leverage Ratio, if during such Reference Period the Company or any Subsidiary shall have made a Material Acquisition or a Material Disposition, Consolidated EBITDA for such Reference Period shall be calculated after giving pro forma effect thereto as if such Material Acquisition or Material Disposition, as applicable, occurred on the first day of such Reference Period. Notwithstanding the foregoing, but subject to the immediately preceding sentence (other than in respect of the Merger), (A) Consolidated EBITDA shall be deemed to be (w) $269,300,000 for the fiscal quarter ended June 30, 2014, (x) $262,600,000 for the fiscal quarter ended September 30, 2014, (y) $240,700,000 for the fiscal quarter ended December 31, 2014 and (z) $250,300,000 for the fiscal quarter ended March 31, 2015 and (B) Consolidated EBITDA for any period ended prior to the Closing Date but subsequent to March 31, 2015 shall be determined in good faith by the Company on a pro forma basis consistent with the basis on which Consolidated EBITDA for the fiscal quarters set forth in clause (A) above were calculated.
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“ Consolidated Interest Coverage Ratio ” means, for any Reference Period, the ratio of (a) Consolidated EBITDA for such Reference Period to (b) Consolidated Interest Expense for such Reference Period.
“ Consolidated Interest Expense ” means, for any period, total interest expense (including that attributable to capitalized lease obligations) of the Company and its Subsidiaries for such period with respect to all outstanding Indebtedness of the Company and its Subsidiaries (including all commissions, discounts and other fees and charges accrued with respect to letters of credit and bankers’ acceptance financing allocable to such period in accordance with GAAP), minus (in the case of net benefits) or plus (in the case of net costs) the net benefits or net costs under all Hedging Agreements in respect of Indebtedness of the Company and its Subsidiaries to the extent such net benefits or net costs are allocable to such period in accordance with GAAP.
“ Consolidated Leverage Ratio ” means, as at the last day of any Reference Period, the ratio of (a) Consolidated Total Debt on such date to (b) Consolidated EBITDA, for such Reference Period.  The Consolidated Leverage Ratio shall be calculated on the date on which the Company delivers to the Administrative Agent the financial statements required to be delivered pursuant to Section 5.01(i)(i) or (ii) , as the case may be, and the certificate required to be delivered pursuant to Section 5.01(i)(iv) demonstrating such ratio.
“ Consolidated Net Income ” means, for any period, the consolidated net income (or loss) of the Company and its Subsidiaries, determined on a consolidated basis in accordance with GAAP; provided that there shall be excluded (a) the income (or deficit) of any Person accrued prior to the date it becomes a Subsidiary of the Company or is merged into or consolidated with the Company or any of its Subsidiaries, (b) the income (or deficit) of any Person (other than a Subsidiary of the Company) in which the Company or any of its Subsidiaries has an ownership interest, except to the extent that any such income is actually received by the Company or such Subsidiary in the form of dividends or similar distributions and (c) the undistributed earnings of any Subsidiary of the Company to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary is not at the time permitted by the terms of any Contractual Obligation (other than under any Loan Document) or any law applicable to such Subsidiary.
“ Consolidated Net Tangible Assets ” means, at any date, the total assets of the Company and its Subsidiaries at such date, determined on a consolidated basis, minus (a) the consolidated current liabilities (excluding interest-bearing liabilities) of the Company and its Subsidiaries as of such date, (b) unamortized debt discount and expense, goodwill, trademarks, brand names, patents and other intangible assets, and (c) any write-up of the value of any assets (other than an allocation of purchase price in an acquisition) after December 31, 2014; all as determined in accordance with GAAP.
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“ Consolidated Total Debt ” means, at any date, the aggregate principal amount of all Indebtedness of the Company and its Subsidiaries at such date, determined on a consolidated basis in accordance with GAAP.
“ Consolidated Transaction Costs ” means, for any period, the sum (without duplication) of all non-recurring fees, costs and expenses incurred by the Company and its Subsidiaries, whether before, on or within six months after the Closing Date, in connection with the Transactions during such period.
“ Contractual Obligation ” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
“ Credit Party ” means  the Administrative Agent, the syndication agents and documentation agents listed on the cover page to this Agreement, the Arrangers, the Issuing Banks or any other Lender.
“ DCP ” has the meaning assigned to such term in the Form S-4.
“ Debtor Relief Laws ” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect.
“ Defaulting Lender ” means, subject to Section 2.19(b) , any Lender that (a) has failed to (i) fund all or any portion of the Revolving Advances, Bid Advances, Term Loans or participations in Letters of Credit required to be funded by it hereunder within two Business Days of the date such Advances or participations were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Company in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, any Issuing Bank or any Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit) within two Business Days of the date when due, (b) has notified the Company, the Administrative Agent or the Issuing Banks in writing, or has made a public statement to the effect, that it does not intend to comply with its funding obligations hereunder (unless such writing or public statement relates to such Lender’s obligation to fund an Advance hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied) or generally under other agreements in which it commits to extend credit, (c) has failed, within three Business Days after written request by the Administrative Agent or the Company, to confirm in writing to the Administrative Agent and the Company that it will comply with its prospective funding obligations hereunder ( provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Company), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law or (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender.  Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.19(b) ) upon delivery of written notice of such determination to the Company, each Issuing Bank and each Lender.
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“ Designated Alternative Currency ” means any Alternative Currency (other than Canadian Dollars, Euro and Swiss Francs) (a) for which Eurodollar Rates can be determined by reference to the applicable Reuters screen as provided in the definition of “Eurodollar Rate” and (b) that has been designated by the Administrative Agent as a Designated Alternative Currency at the request of the Company and with the consent of (i) the Administrative Agent, (ii) each Issuing Bank and (iii) each Revolving Lender.
“ Designated Jurisdiction ” has the meaning specified in Section 4.01(k) .
“ Domestic Lending Office ” means, with respect to any Revolving Lender or Term Loan Lender, the office of such Lender specified as its “Domestic Lending Office” opposite its name on Schedule I hereto or in the Assignment and Assumption pursuant to which it became a Lender, or such other office of such Lender as such Lender may from time to time specify to the Company and the Administrative Agent.
“ Domestic Subsidiary ” shall mean any Subsidiary organized under the laws of any State of the United States, substantially all of the assets of which are located, and substantially all of the business of which is conducted, in the United States.
“ Effective Date ” shall mean June 23, 2015.
“ Eligible Assignee ” means (a) any Lender, (b) any Affiliate of any Lender, (c) any Approved Fund, (d) any commercial bank and (e) any other financial institution or investment fund engaged as a primary activity in the ordinary course of its business in making or investing in commercial loans or debt securities; provided , however , that neither the Company, any Affiliate of the Company, any natural Person, any Defaulting Lender or any subsidiary of a Defaulting Lender shall qualify as an Eligible Assignee.
“ EMU Legislation ” means the legislative measures of the European Council (including the European Council regulations) for the introduction of, changeover to or operation of the Euro in one or more member states.
“ Environmental Laws ” means any and all applicable federal, state, local and foreign statutes, laws, judicial decisions, regulations, ordinances, rules, judgments, orders, decrees, injunctions, permits, grants, franchises, licenses or governmental restrictions relating to (i) the effect of the environment on human health, (ii) the environment or (iii) emissions, discharges or releases of Hazardous Substances into the environment, including ambient air, surface water, groundwater, or land, or otherwise relating to the effect on the environment of the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Substances or the remediation thereof.
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“ ERISA ” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and rulings issued thereunder.
“ ERISA Affiliate ” means any Person who for purposes of Title IV of ERISA is a member of the Company’s controlled group or is under common control with the Company, in each case, within the meaning of Section 414 of the Code.
“ ERISA Event ” means (i) the occurrence of a reportable event, within the meaning of Section 4043 of ERISA, unless the 30-day notice requirement with respect thereto has been waived by the PBGC; (ii) the provision by the administrator of any Plan of a notice of intent to terminate such Plan, pursuant to Section 4041(a)(2) of ERISA (including any such notice with respect to a plan amendment referred to in Section 4041(e) of ERISA); (iii) the cessation of operations at a facility by the Company or any ERISA Affiliate in the circumstances described in Section 4062(e) of ERISA and with respect to a Plan; (iv) the withdrawal by the Company or any ERISA Affiliate from a Multiple Employer Plan during a plan year for which it was a substantial employer, as defined in Section 4001(a)(2) of ERISA; (v) the failure by the Company or any ERISA Affiliate to make a payment to a Plan required under Section 302 of ERISA, which failure could result in the imposition of a Lien under Section 303(k)(1) of ERISA; or (vi) the institution by the PBGC of proceedings to terminate a Plan, pursuant to Section 4042 of ERISA, or the occurrence of any event or condition which would constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, a Plan.
“ EURIBOR Screen Rate ” has the meaning set forth in the definition of “Eurodollar Rate”.
“ Euro ” and “ € ” mean the lawful currency of the Participating Member States of the European monetary union.
“ Eurocurrency Liabilities ” has the meaning assigned to that term in Regulation D of the Board of Governors of the Federal Reserve System, as in effect from time to time.
“ Eurodollar Lending Office ” means, with respect to any Lender, the office of such Lender specified as its “Eurodollar Lending Office” opposite its name on Schedule I hereto or in the Assignment and Assumption pursuant to which it became a Lender (or, if no such office is specified, its Domestic Lending Office), or such other office of such Lender as such Lender may from time to time specify to the Company and the Administrative Agent.
“ Eurodollar Rate ” means, for the Interest Period for each Eurodollar Rate Advance comprising part of the same Revolving Borrowing, each Eurodollar Rate Advance comprising part of the same Term Loan Borrowing, and, in the case of each Bid Advance comprising part of the same Bid Borrowing, for the period from the date of such Bid Advance to its maturity date as specified in the applicable Notice of Bid Borrowing, an interest rate per annum equal to (a) with respect to any such Eurodollar Rate Advance denominated in Canadian Dollars, the interbank offered rate administered by Thomson Reuters (or any other Person that takes over the administration of such rate) for Canadian Dollars for a period equal in length to such Interest Period as displayed on page CDOR of the Reuters screen (or, in the event such rate does not appear on such Reuters page, on any successor or substitute page on such screen that displays such rate, or on the appropriate page of such other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion; in each case, the “ CDOR Screen Rate ”), (b) with respect to any such Eurodollar Rate Advance denominated in Euros, the interbank offered rate administered by the Banking Federation of the European Union (or any other Person which takes over the administration of such rate) for Euros for a period equal in length to such Interest Period as displayed on page EURIBOR01 of the Reuters screen (or, in the event such rate does not appear on such Reuters page, on any successor or substitute page on such screen that displays such rate, or on the appropriate page of such other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion; in each case, the “ EURIBOR Screen Rate ”) and (c) with respect to any such Eurodollar Rate Advance in US Dollars or any Committed Alternative Currency (other than Canadian Dollars or Euros) or any Bid Advance, the London interbank offered rate as administered by the ICE Benchmark Administration (or any other Person that takes over the administration of such rate) for the relevant currency for a period equal in length to the applicable period as displayed on page LIBOR01 of the Reuters Screen that displays such rate (or, in the event such rate does not appear on such Reuters page, on any successor or substitute page on such screen that displays such rate, or on the appropriate page of such other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion; in each case, the “ LIBO Screen Rate ”), in each case as of the Specified Time on the Quotation Day for such period; provided that if the applicable Screen Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement; provided , further , that if the applicable Screen Rate shall not be available at such time for such Interest Period or applicable period (an “ Impacted Interest Period ”) with respect to the relevant currency, then the Eurodollar Rate shall be the Interpolated Rate at such time ( provided that if the Interpolated Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement).
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Notwithstanding the foregoing, if at the time that the Administrative Agent shall seek to determine the relevant Screen Rate on the Quotation Day for any Interest Period for a Eurodollar Rate Advance or any period for a Bid Advance, the applicable Screen Rate shall not be available for such Interest Period for any reason and the Administrative Agent shall determine that it is not possible to determine the Interpolated Rate (which conclusion shall be conclusive and binding absent manifest error), then, subject to Section 2.08 , the Reference Bank Rate shall be the Eurodollar Rate for such Interest Period for such Eurodollar Rate Advance or such period for such Bid Advance, as applicable; provided that if any Reference Bank Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
“ Eurodollar Rate Advance ” means any Term Loan or Revolving Advance which bears interest as provided in Section 2.06(b) .
“ Eurodollar Rate Reserve Percentage ” of any Lender for the Interest Period for any Eurodollar Rate Advance means the reserve percentage applicable during such Interest Period (or if more than one such percentage shall be so applicable, the daily average of such percentages for those days in such Interest Period during which any such percentage shall be so applicable) under regulations issued from time to time by the Board of Governors of the Federal Reserve System (or any successor) for determining the maximum reserve requirement (including any emergency, supplemental or other marginal reserve requirement) for such Lender with respect to liabilities or assets consisting of or including Eurocurrency Liabilities having a term equal to such Interest Period.
“ Events of Default ” has the meaning specified in Section 6.01 .
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“ Exchange Rate ” means on any date, for purposes of determining the US Dollar Equivalent of any other currency, the rate at which such other currency may be exchanged into US Dollars at the time of determination on such day as set forth on the Reuters WRLD Page for such currency; provided that if such rate does not appear on any Reuters WRLD Page, such exchange rate shall be determined by reference to such other publicly available service for displaying exchange rates as may be agreed upon by the Administrative Agent and the Company, or, in the absence of such an agreement, the Administrative Agent may use any reasonable method it deems appropriate to determine such rate, and such determination shall be conclusive absent manifest error.
“ Excluded Taxes ” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, United States federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in an Advance or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Advance or Commitment (other than pursuant to an assignment request by the Company under Section 2.17(b) )   or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.14 , amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply with Section 2.14(g) and (d) any United States federal withholding Taxes imposed under FATCA .
“ Existing Credit Agreement ” means the US$415,000,000 Credit Agreement dated as of June 24, 2014 (as amended, restated, supplemented or otherwise modified from time to time prior to the Closing Date) among the Company, the Canadian Borrower, the banks named therein and Wells Fargo as administrative agent.
“ Existing Issuing Bank ” means each Issuing Bank (as defined in the Olin Credit Agreement) party to the Olin Credit Agreement as of the Restatement Date.
“ Existing Lenders ” means (a) the Revolving Lenders, Term Loan Lenders and Issuing Banks (in each case as defined in the Olin Credit Agreement) party to the Olin Credit Agreement as of the Restatement Date and (b) the Term Loan Lenders (as defined in the Spinco Credit Agreement) party to the Spinco Credit Agreement as of the Restatement Date.
“ Facility ” means each of (a) the Revolving Credit Facility, (b) the Initial Term Loans and (c) the Incremental Term Loan Commitments and the Incremental Term Loans made thereunder, as the context requires. Upon any extension of a Termination Date pursuant to Section 2.04(b), the Commitments or Term Loans so extended shall be a separate Facility from the non-extended Commitments or Term Loans.
“ FATCA ” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code.
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“ Federal Funds Rate ” means, for any period, a fluctuating interest rate per annum equal for each day during such period to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published in Federal Reserve Statistical Release H.15(519), for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations for such day on such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it; provided that if the Federal Funds Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
“ Fee Letter ” means, collectively, (a) the Amended and Restated Arranger Fee Letter and Amendment to the Bridge Arranger Fee Letter dated June 18, 2015, among the Administrative Agent, Wells Fargo Securities, LLC, JPMorgan Chase Bank, N.A., J.P. Morgan Securities LLC and the Company, and (b) the Administrative Agent Fee Letter dated March 26, 2015, between the Administrative Agent and the Company.
“ Foreign Lender ” means (a) if the applicable Borrower is a US Person, a Lender that is not a US Person, and (b) if the applicable Borrower is not a US Person, a Lender that is resident or organized under the laws of a jurisdiction other than that in which such Borrower is resident for tax purposes.
“ Foreign Subsidiary ” shall mean any Subsidiary other than a Domestic Subsidiary.
“ Fronting Exposure ” means, at any time there is a Defaulting Lender that is a Revolving Lender, with respect to any Issuing Bank, such Defaulting Lender’s Pro Rata Share of the outstanding Letters of Credit other than L/C Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof.
“ GAAP ” has the meaning specified in Section 1.04 .
“ Governmental Authority ” means the government of the United States or any other nation, or of any political subdivision thereof, whether state, provincial or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).
“ Guarantee ” of or by any Person (the “ guarantor ”) means any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the “ primary obligor ”) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or obligation; provided , that the term Guarantee shall not include endorsements for collection or deposit in the ordinary course of business.
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“ Guaranteed Obligations ” has the meaning specified in Section 7.01 .
“ Guarantors ” means the Company, the Spinco Borrower and any Additional Borrower that is a Domestic Subsidiary.
“ Guaranty ” means the guaranty of the Company, the Spinco Borrower and any Additional Borrower set forth in Article VII .
“ Hazardous Substances ” means any toxic, radioactive, caustic or otherwise hazardous substance, material or waste, including petroleum, its derivatives, by-products and other hydrocarbons, in each case regulated by Environmental Laws.
“ Hedging Agreement ” means any interest rate protection agreement, foreign currency exchange agreement, commodity price protection agreement or other interest or currency exchange rate or commodity price hedging arrangement.
“ Impacted Interest Period ” has the meaning set forth in the definition of “Eurodollar Rate”.
“ Increase Date ” has the meaning specified in Section 2.04(d)(i) .
“ Incremental Lender ” has the meaning specified in Section 2.04(d)(ii) .
“ Incremental Loan Commitments ” has the meaning specified in Section 2.04(d)(i) .
“ Incremental Term Loan ” has the meaning specified in Section 2.04(d)(i) .
“ Incremental Term Loan Commitment ” has the meaning specified in Section 2.04(d)(i) .
“ Indebtedness ” of any Person means, without duplication, (a) all obligations of such Person for borrowed money or with respect to deposits or advances of any kind, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person upon which interest charges are customarily paid, excluding deferred compensation of officers and directors, (d) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person, (e) all obligations of such Person in respect of the deferred purchase price of property or services (excluding current accounts payable incurred in the ordinary course of business), (f) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed, (g) all Guarantees by such Person of Indebtedness of others, (h) all Capital Lease Obligations of such Person and all obligations of such Person under synthetic leases, (i) all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit and letters of guaranty, other than letters of credit and letters of guaranty issued to support obligations (other than Indebtedness) incurred in the ordinary course of business, (j) all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances and (k) all Invested Amounts.  The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor.
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“ Indemnified Costs ” has the meaning specified in Section 8.06(a) .
“ Indemnified Taxes ” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made or amount credited by or on account of any obligation of the Borrowers under any Loan Document and (b) to the extent not otherwise described in clause (a), Other Taxes.
“ Initial Term Loans ” means (i) the term loans made to the Company by the Term Loan Lenders pursuant to Section 2.01(c) of the Olin Credit Agreement on the Closing Date and assumed by the Spinco Borrower pursuant to the Amendment Agreement and (ii) the term loans made to Spinco pursuant to the Spinco Credit Agreement.  The aggregate outstanding principal amount of the Initial Term Loans on the Restatement Date is US$1,350,000,000.
“ Initiatives ” has the meaning specified in the definition of “Consolidated Cost Savings”.
“ Insufficiency ” means, with respect to any Plan, the amount of unfunded benefit liabilities, as defined in Section 4001(a)(18) of ERISA, if any.
“ Interest Election Request ” means a request by a Borrower to convert or continue a Term Loan Borrowing or Revolving Borrowing in accordance with Section 2.15 .
“ Interest Period ” means, for each Eurodollar Rate Advance comprising part of the same Revolving Borrowing or Term Loan Borrowing, the period commencing on the date of such Advance (or on the effective date of any election applicable to such Borrowing pursuant to Section 2.15 ) and ending the last day of the period selected by the applicable Borrower pursuant to the provisions below.  The duration of each such Interest Period shall be 1, 2, 3 or 6 months or, with the consent of all the Lenders required to fund such Advance, twelve months, in each case as the applicable Borrower may select, upon notice received by the Administrative Agent not later than 11:00 A.M. (New York City time) on the third Business Day prior to the first day of such Interest Period; provided , however , that:
(A)              the Borrowers may not select any Interest Period which ends after the applicable Termination Date;
(B)              Interest Periods commencing on the same date for Advances comprising part of the same Revolving Borrowing shall be of the same duration; and
(C)              whenever the last day of any Interest Period would otherwise occur on a day other than a Business Day, the last day on such Interest Period shall be extended to occur on the next succeeding Business Day, provided , that if such extension would cause the last day of such Interest Period to occur in the next following calendar month, the last day of such Interest Period shall occur on the next preceding Business Day.
“ Internal Separation ” has the meaning specified in the Separation Agreement.
“ Interpolated Rate ” means, at any time and with respect to any currency, the rate per annum (rounded to the same number of decimal places as the relevant Screen Rate) determined by the Administrative Agent (which determination shall be conclusive and binding absent manifest error) to be equal to the rate that results from interpolating on a linear basis between: (a) the applicable Screen Rate (for the longest period for which the applicable Screen Rate is available for the applicable currency) that is shorter than the Impacted Interest Period and (b) the applicable Screen Rate (for the shortest period for which the applicable Screen Rate is available for the applicable currency) that exceeds the Impacted Interest Period, in each case, as of the Specified Time on the Quotation Day for such Interest Period or period, as applicable. When determining the rate for a period which is less than the shortest period for which the applicable Screen Rate is available, the Screen Rate for purposes of clause (a) above shall be deemed to be the overnight screen rate, where “overnight screen rate” means, in relation to any currency, the overnight rate for such currency determined by the Administrative Agent from such service as the Administrative Agent may select.
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“ Invested Amounts ” means the amounts invested by investors that are not Affiliates of the Company in connection with a receivables securitization program and paid to the Company or any of its Subsidiaries, as reduced by the aggregate amounts received by such investors from the payment of receivables and applied to reduce such invested amounts.
“ Investment Grade Rating ” means a corporate credit rating and/or family rating, as applicable, of BBB- or higher by S&P and Baa3 or higher by Moody’s. 
“ IRS ” means the United States Internal Revenue Service.
“ ISP ” means, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice, Inc. (or such later version thereof as may be in effect at the time of issuance).
“ Issuing Bank ” means each Existing Issuing Bank and any Eligible Assignee to which any Letter of Credit Commitment hereunder has been assigned pursuant to Section 9.02 so long as the Company has consented to such assignment and any other Revolving Lender approved in writing by the Company and the Administrative Agent (which approval by the Administrative Agent shall not be unreasonably withheld) so long as such Eligible Assignee or such other Lender expressly agrees to perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as an Issuing Bank and notifies the Administrative Agent of its Applicable Lending Office (which information shall be recorded by the Administrative Agent in the Register), for so long as such Issuing Bank or Eligible Assignee, as the case may be, shall have a Letter of Credit Commitment.
“ JV ” means Dow-Mitsui Chlor Alkali LLC.
“ JV Credit Agreement ” means the Credit Agreement, dated as of March 29, 2011, among the JV, as borrower, Sumitomo Mitsui Banking Corporation, as administrative agent, and the lenders and other agents named therein.
“ L/C Cash Collateral Account ” means an interest-bearing cash collateral account to be established and maintained by the Administrative Agent, over which the Administrative Agent shall have sole dominion and control, upon terms as may be satisfactory to the Administrative Agent.
“ L/C Exposure ” means, with respect to any Revolving Lender, its Pro Rata Share of the L/C Obligations at such time.
“ L/C Obligations ” means at any time, an amount equal to the sum of (a) the aggregate Available Amount of all Letters of Credit outstanding at such time and (b) the aggregate amount of drawings under Letters of Credit which have not then been reimbursed pursuant to Section 2.02(b)(iii) .  For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.
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“ L/C Related Documents ” has the meaning specified in Section 2.05(d)(i) .
“ Lenders ” means the Existing Lenders (in each case until such Lender or Issuing Bank shall have assigned or had assumed all interests hereunder as provided in Sections 9.02 or 2.04(c) ), each Eligible Assignee or Assuming Lender that shall become a party hereto pursuant to Sections 9.02 or 2.04(c) , and each Incremental Lender or New Lender that shall become a party hereto pursuant to Section 2.04(d) .
“ Letter of Credit Agreement ” has the meaning specified in Section 2.02(b)(i) .
“ Letter of Credit Commitment ” means, with respect to each Issuing Bank at any time, the amount set forth opposite such Issuing Bank’s name on Schedule I hereto under the caption “Letter of Credit Commitment” or, if such Issuing Bank has entered into one or more Assignment and Assumptions or has assumed the role of an Issuing Bank after the Effective Date, set forth for such Issuing Bank in the Register maintained by the Administrative Agent pursuant to Section 9.02 as such Issuing Bank’s “Letter of Credit Commitment”, as such amount may be reduced at or prior to such time pursuant to Section 2.04 , or such other amount as agreed to by such Issuing Bank and the Company.
“ Letter of Credit Facility ” means, at any time, an amount equal to the lesser of (a) the aggregate amount of the Issuing Banks’ Letter of Credit Commitments at such time and (b) US$100,000,000, as such amount may be reduced at or prior to such time pursuant to Section 2.04 .  The Letter of Credit Facility is part of, and not in addition to, the Revolving Credit Facility.
“ Letters of Credit ” has the meaning specified in Section 2.01(b) .
“ LIBO Screen Rate ” has the meaning set forth in the definition of “Eurodollar Rate”.
“ Lien ” means any mortgage, pledge, security interest, encumbrance, lien or charge of any kind (including any conditional sale or other title retention agreement).
“ Loan Documents ” means this Agreement and the Notes.
“ Local Time ” means (a) with respect to an Advance denominated in US Dollars, New York City time, and (b) with respect to an Advance denominated in a Committed Alternative Currency, local time to the Principal Financial Center of the applicable Committed Alternative Currency.
“ Majority Facility Lenders ” means, at any time and with respect to any Facility, Lenders holding at least a majority of (a) until the Closing Date, the Commitments with respect to such Facility then in effect and (b) thereafter, (i) with respect to any Facility that is a term loan facility, the aggregate unpaid principal amount of the Term Loans of such Facility then outstanding and (ii) with respect to any facility that is a revolving credit facility, the Revolving Commitments of such Facility then in effect (or if the Revolving Commitments of such Facility have been terminated, the sum of (x) the US Dollar Equivalent of the aggregate principal amount of Revolving Advances of such Facility then outstanding (other than Revolving Advances made by an Issuing Bank pursuant to Section 2.02(b)(iii) which have not then been reimbursed), (y) the L/C Exposure for all Lenders then outstanding in respect of such Facility and (z) the Bid Advances for all Lenders then outstanding in respect of such Facility); provided that the unused Commitments of, and the portion of the Term Loans, Revolving Advances and Bid Advances held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Majority Facility Lenders.
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“ Majority Lenders ” means, at any time, Lenders holding more than 50% of (a) until the Closing Date, the Commitments then in effect and (b) thereafter, the sum of (i) the aggregate unpaid principal amount of the Term Loans then outstanding and (ii) the Revolving Commitments then in effect (or if the Revolving Commitments have been terminated, the sum of (x) the US Dollar Equivalent of the aggregate principal amount of Revolving Advances then outstanding (other than Revolving Advances made by an Issuing Bank pursuant to Section 2.02(b)(iii) which have not then been reimbursed), (y) the L/C Exposure for all Lenders then outstanding and (z) the Bid Advances then outstanding); provided that the unused Commitments of, and the portion of the Term Loans, Revolving Advances and Bid Advances held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Majority Lenders.
“ Margin Stock ” shall have the meaning given such term under Regulation U issued by the Board of Governors of the Federal Reserve System.
“ Material Acquisition ” means any Acquisition that involves the payment of consideration by the Company and its Subsidiaries in excess of $250,000,000.
“ Material Disposition ” means any means any sale, transfer or other disposition of property or series of related sales, transfers or other dispositions of property that yields gross proceeds to the Company or any of its Subsidiaries in excess of $250,000,000.
“ Merger ” means the merger of Merger Sub and Spinco, with Spinco continuing as the surviving corporation.
“ Merger Agreement ” means the Merger Agreement, dated as of March 26, 2015, among TDCC, Spinco, the Company and Merger Sub, as amended, restated or otherwise modified from time to time.
“ Merger Documentation ” means (a) the Merger Agreement, (b) all exhibits, schedules, annexes and other attachments thereto and (c) all other agreements related thereto.
“ Merger Sub ” means Blue Cube Acquisition Corp., a Delaware corporation.
“ Moody’s ” means Moody’s Investors Service, Inc. and any successor thereto. 
“ Multiemployer Plan ” means a multiemployer plan, as defined in Section 4001(a)(3) of ERISA, to which the Company or any ERISA Affiliate is making or accruing an obligation to make contributions, or has, within any of the preceding five plan years, made or accrued an obligation to make contributions.
“ Multiple Employer Plan ” means a single-employer plan, as defined in Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the Company or any ERISA Affiliate and for at least one Person that is not an employee of the Company or any ERISA Affiliate or (b) was so maintained and in respect of which the Company or any ERISA Affiliate could have liability under Section 4064 or 4069 of ERISA in the event that such plan has been or were to be terminated.
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“ Necessary JV Consents ” means the consents necessary to permit the transfer of TDCC’s interest in the JV to Spinco or any Subsidiary of Spinco.
“ New Lender ” has the meaning specified in Section 2.04(d)(ii) .
“ Non-Consenting Lender ” means any Lender that does not approve any consent, waiver, amendment or other modification that (i) requires the approval of all Lenders or all affected Lenders in accordance with the terms of Section 10.01 and (ii) has been approved by the Majority Lenders.
“ Non-Defaulting Lender ” means, at any time, each Revolving Lender or Term Loan Lender that is not a Defaulting Lender at such time.
“ Non-Extending Lender ” has the meaning specified in Section 2.04(b) .
“ Note ” means a Revolving Note, Bid Note or Term Loan Note.
“ Notice of Bid Borrowing ” has the meaning specified in Section 2.02(d)(i)(A) .
“ Notice of Borrowing ” has the meaning specified in Section 2.02(a)(i)(A) .
“ Notice of Issuance ” has the meaning specified in Section 2.02(b)(i) .
“ Officer’s Certificate ” means a certificate signed in the name of the Company by its President, one of its Vice Presidents, its Treasurer or its Controller.
“ Olin Credit Agreement ” means the Credit Agreement dated as of June 23, 2015, among the Company, the Canadian Borrower, the lenders party thereto and Wells Fargo, as administrative agent.
“ Other Connection Taxes ” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Advance or Loan Document).
“ Other Borrowers ” means (a) with respect to the Company, (i) the Canadian Borrower, (ii) the Spinco Borrower and (iii) any Additional Borrower, (b) with respect to the Spinco Borrower, (i) the Company, (ii) the Canadian Borrower and (iii) any Additional Borrower and (c) with respect to any Additional Borrower that is a Guarantor, (i) the Company, (ii) the Spinco Borrower, (iii) the Canadian Borrower and (iv) each other Additional Borrower.
“ Other Taxes ” means all present or future stamp, court, documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.17(b) ).
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“ Participant ” has the meaning assigned to such term in Section 9.03 .
“ Participant Register ” has the meaning assigned to such term in Section 9.03 .
“ Participating Member State ” means a member of the European Communities that adopts or has adopted the Euro as its currency in accordance with EMU Legislation.
“ PBGC ” means the Pension Benefit Guaranty Corporation.
“ Performance Level ” means, as of any date of determination, the level set forth below as then applicable:
I Consolidated Leverage Ratio is less than or equal to 1.50:1.00.

II Consolidated Leverage Ratio is greater than 1.50:1.00 but less than or equal to 2.50:1.00.

III Consolidated Leverage Ratio is greater than 2.50:1.00 but less than or equal to 3.50:1.00.

IV Consolidated Leverage Ratio is greater than 3.50:1.00.

For purposes of this definition, (i) the Performance Level shall be, from the Effective Date until adjusted pursuant to clause (ii) below, (x) based on Performance Level III if the Consolidated Leverage Ratio as of the Reference Period most recently ended on or prior to the Closing Date (and calculated to give pro forma effect to the Consolidated Total Debt as of the Closing Date) is less than or equal to 3.50:1.00 and (y) otherwise, Performance Level IV, and (ii) determined as at the end of each Reference Period ended as of the end of or after the first full fiscal quarter ending after the Closing Date based upon the calculation of the Consolidated Leverage Ratio for such Reference Period.  The Applicable Margin and Commitment Fee Rate shall be adjusted (if necessary) upward or downward on the first day following delivery of the certificate referred to in Section 5.01(i)(iv) .

“ Permitted Encumbrances ” means:

(a)              Liens imposed by law for taxes that are not yet due or are being contested in good faith by appropriate proceedings;

(b)              carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like Liens imposed by law, arising in the ordinary course of business and securing obligations that are not overdue by more than 30 days or are being contested in good faith by appropriate proceedings;

(c)              pledges and deposits made in the ordinary course of business in compliance with workers’ compensation, unemployment insurance and other social security laws or regulations;
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(d)              deposits to secure the performance of bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature, in each case in the ordinary course of business;

(e)              judgment liens in respect of judgments that do not constitute an Event of Default under Section 6.01(f) ; and

(f)              easements, zoning restrictions, rights-of-way and similar encumbrances on real property imposed by law or arising in the ordinary course of business that do not secure any monetary obligations and do not materially detract from the value of the affected property or interfere with the ordinary conduct of business of the Company or any Subsidiary;

provided that the term “Permitted Encumbrances” shall not include any Lien securing Indebtedness.
 
“ Permitted Receivables Facility ” means one or more accounts receivable facilities established by a Receivables Subsidiary and one or more of the Company or its Subsidiaries, whereby the Company or one or more of its Subsidiaries shall sell or transfer accounts receivables of the Company or its Subsidiaries to such Receivables Subsidiary which in turn shall transfer to a buyer, purchaser or lender undivided fractional interests in such accounts receivable (or otherwise borrow against such accounts receivable), so long as (a) no portion of the Indebtedness or any other obligation (contingent or otherwise) under such Permitted Receivables Facility shall be guaranteed by the Company or any of its Subsidiaries (other than the Receivables Subsidiary), (b) there shall be no recourse or obligation to the Company or any of its Subsidiaries (other than the Receivables Subsidiary) whatsoever other than pursuant to representations, warranties, covenants and indemnities entered into in the ordinary course of business in connection with such Permitted Receivables Facility that in the reasonable opinion of the Company are customary for securitization transactions and (c) none of the Company nor any of its Subsidiaries (other than the Receivables Subsidiary) shall have provided, either directly or indirectly, any other credit support of any kind in connection with such Permitted Receivables Facility, other than as set forth in clause (b) of this definition.
 
“ Person ” means an individual, partnership, corporation (including a business trust), limited liability company, joint stock company, trust, unincorporated association, joint venture or other entity, or a government or any political subdivision or agency thereof.
 
“ Plan ” means a Single-Employer Plan or a Multiple Employer Plan.
 
“ Post-Petition Interest ” has the meaning specified in Section 7.05(b) .
 
“ Principal Financial Center ” means, in the case of any Committed Alternative Currency, the principal financial center where such currency is cleared and settled, as determined by the Administrative Agent.
 
“ Pro Forma Financial Statements ” means the pro forma consolidated balance sheet and related pro forma consolidated statement of income of the Company and its Subsidiaries delivered pursuant to Section 3.01(i) of the Olin Credit Agreement.
 
“ Pro Rata Share ” of any amount means, with respect to any Revolving Lender at any time, the product of such amount times a fraction the numerator of which is the amount of such Lender’s Revolving Commitment at such time (or, if the Revolving Commitments shall have been terminated pursuant to Section 2.04 or 6.01 , such Lender’s Revolving Commitment as in effect immediately prior to such termination) and the denominator of which is the aggregate amount of all Revolving Commitments at such time (or, if the Revolving Commitments shall have been terminated pursuant to Section 2.04 or 6.01 , the aggregate amount of all Revolving Commitments as in effect immediately prior to such termination).
 
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“ Quotation Day ” means (a) with respect to any Eurodollar Rate Advance denominated in Canadian Dollars for any Interest Period, the first day of such Interest Period, (b) with respect to any Eurodollar Rate Advance denominated in Euros for any Interest Period, two TARGET Days before the first day of such Interest Period, (c) with respect to any Eurodollar Rate Advance denominated in any currency other than Canadian Dollars or Euros for any Interest Period, two Business Days prior to the commencement of such Interest Period (unless, in each case, market practice differs in the relevant market where the Eurodollar Rate for such currency is to be determined, in which case the Quotation Day will be determined by the Administrative Agent in accordance with market practice in such market (and if quotations would normally be given on more than one day, then the Quotation Day will be the last of those days)) and (d) with respect to any Bid Advance for any period, two Business Days prior to the date of such Bid Borrowing.
 
“ Receivables Related Assets ” means, collectively, accounts receivable, instruments, chattel paper, obligations, general intangibles and other similar assets, in each case relating to receivables subject to a Permitted Receivables Facility, including interests in merchandise or goods, the sale or lease of which gave rise to such receivables, related contractual rights, guarantees, insurance proceeds, collections and proceeds of all of the foregoing.
 
“ Receivables Subsidiary ” means a Wholly Owned Subsidiary of the Company that has been established as a “bankruptcy remote” Subsidiary for the sole purpose of acquiring accounts receivable under a Permitted Receivables Facility and that shall not engage in any activities other than in connection with a Permitted Receivables Facility.
 
“ Recipient ” means (a) the Administrative Agent, (b) any Lender and (c) any Issuing Bank, as applicable.
 
“ Reference Bank Rate ” means, with respect to any Eurodollar Rate Advance in any currency for any Interest Period or any Bid Advance for the period from the date of such Bid Advance to its maturity date as specified in the applicable Notice of Bid Borrowing, the arithmetic mean of the Submitted Reference Bank Rates (rounded upward to four decimal places) in respect thereof.
 
“ Reference Banks ” means with respect to any currency, such banks as may be appointed by the Administrative Agent as Reference Banks in respect of such currency in consultation with the Company and as consented to by such bank.
 
“ Reference Period ” means any period of four consecutive fiscal quarters of the Company.
 
“ Refinancing ” means the termination of the commitments, and payment in full of all Indebtedness, interest, fees and other amounts outstanding, under (a) the Existing Credit Agreement and (b) in the event that the Company and/or TDCC cannot obtain the Necessary JV Consents, the JV Credit Agreement.
 
“ Register ” has the meaning specified in Section 9.02(d) .
 
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“ Regulation FD ” has the meaning specified in Section 10.12 .
 
“ Related Parties ” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, representatives, controlling persons and agents, including accountants, legal counsel and other advisors of such Person and of such Person’s Affiliates.
 
“ Replaced Revolving Commitments ” has the meaning assigned to such term in Section 10.01 .
 
“ Replacement Revolving Commitments ” has the meaning assigned to such term in Section 10.01 .
 
“ Replaced Term Loan ” has the meaning assigned to such term in Section 10.01 .
 
“ Replacement Term Loan ” has the meaning assigned to such term in Section 10.01 .
 
“ Restatement Date ” has the meaning assigned to such term in the Amendment Agreement.
 
“ Revolving Advance ” means an advance (other than a Bid Advance) by a Revolving Lender to a Borrower pursuant to Section 2.02(a) or (b)(iii) , and refers to (i) in the case of Revolving Advances denominated in US Dollars, a Base Rate Advance or a Eurodollar Rate Advance (each of which shall be a “ Type ” of Revolving Advance for Revolving Advances denominated in US Dollars) and (ii) in the case of Revolving Advances denominated in any Committed Alternative Currency, a Eurodollar Rate Advance (which shall be the “Type” of Revolving Advance for Revolving Advances denominated in such currency).
 
“ Revolving Borrowing ” means a borrowing consisting of simultaneous Revolving Advances of the same currency, the same Type (and, in the case of a borrowing consisting of Eurodollar Rate Advances, having the same Interest Period) made by the Revolving Lenders.
 
“ Revolving Commitment ” means, with respect to any Revolving Lender at any time, the amount set forth opposite such Lender’s name on Schedule I hereto under the caption “Revolving Commitment” or, if such Lender has entered into one or more Assignment and Assumptions, set forth for such Lender in the Register maintained by the Administrative Agent pursuant to Section 9.02 as such Lender’s “Revolving Commitment”, as such amount may be reduced or increased at or prior to such time pursuant to Section 2.04 .  The aggregate Revolving Commitments of all the Revolving Lenders as of the Restatement Date shall be US$500,000,000.
 
“ Revolving Commitment Increase ” has the meaning specified in Section 2.04(d)(i).
 
“ Revolving Credit Facility ” means the revolving credit facility to the Company, the Spinco Borrower and the Canadian Borrower established pursuant to Section 2.01(a)(i) (including any increase in such revolving credit facility established pursuant to Section 2.04(d) ).
 
“ Revolving Exposure ” means, with respect to any Revolving Lender at any time, the sum of (a) the outstanding principal amount of the US Dollar Equivalent of such Lender’s Revolving Advances and (b) such Lender’s L/C Exposure.
 
“ Revolving Lender ” means a Lender with a Revolving Commitment and/or outstanding Revolving Advances, Bid Advances and/or participations in Letters of Credit.
 
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“ Revolving Note ” means a promissory note of a Borrower payable to any Lender and its registered assigns, in substantially the form of Exhibit A-1 hereto, evidencing the aggregate Indebtedness of such Borrower to such Lender resulting from the Revolving Advances made to such Borrower by such Lender.
 
“ Revolving Termination Date ” means the date that is five years after the Closing Date (or the earlier date on which the termination in whole of the Commitments occurs pursuant to S ections 2.04(a) or 6.01 ).
 
“ Sanctioned Person ” means any Person described in Section 4.01(k)(i)(x) , (y) or (z) .
 
“ Sanctions ” has the meaning specified in Section 4.01(k) .
 
“ S&P ” means Standard and Poor’s Financial Services LLC and any successor thereto. 
 
“ Screen Rate ” means the CDOR Screen Rate, the EURIBOR Screen Rate and the LIBO Screen Rate, collectively and individually, as the context may require.
 
“ SEC ” means the Securities and Exchange Commission.
 
“ Separation Agreement ” means the Separation Agreement, dated as of March 26, 2015, between TDCC and Spinco, as amended, restated or otherwise modified from time to time.
 
“ Separation Documentation ” means (a) the Separation Agreement, (b) all exhibits, schedules, annexes and other attachments thereto and (c) all other agreements related thereto.
 
“ Significant Subsidiary ” means each Subsidiary, but excludes any Subsidiary the US Dollar value (or equivalent thereof) of whose assets is less than 5% of the total assets of the Company and the Subsidiaries, on a consolidated basis.
 
“ Single-Employer Plan ” means a single-employer plan, as defined in Section 4001(a)(15) of ERISA, that (a) is maintained by the Company or any ERISA Affiliate solely for employees of the Company or any ERISA Affiliate or (b) was so maintained and in respect of which the Company or any ERISA Affiliate could have liability under Section 4069 of ERISA in the event that such plan has been or were to be terminated.
 
“ Solvent ” means (a) each of the Fair Value and the Present Fair Salable Value of the assets of the Company and its Subsidiaries taken as a whole exceed their Stated Liabilities and Identified Contingent Liabilities, (b) the Company and its Subsidiaries taken as a whole do not have Unreasonably Small Capital and (c) the Company and its Subsidiaries taken as a whole can pay their Stated Liabilities and Identified Contingent Liabilities as they mature. Terms used in this definition and not otherwise defined in this Agreement have the meanings assigned thereto in Exhibit F hereto.
 
“ Specified Merger Agreement Representations ” means such of the representations and warranties made by TDCC or Spinco in the Merger Agreement as are material to the interests of the Lenders, but only to the extent that the Company (or an Affiliate of the Company) has the right to terminate its obligations under the Merger Agreement or decline to consummate the Merger as a result of a breach of such representations and warranties in the Merger Agreement.
 
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“ Specified Representations ” means those representations and warranties set forth in Sections 4.01(a) (solely as to organization, existence and corporate powers of the Borrowers), (b)(i) , (b)(ii)(x) , (d) , (g) , (h) , (k)(ii) , (l) (solely as to use of proceeds of any borrowing or Letter of Credit under this Agreement), (m) and (n) .
 
“ Specified Time ” means (a) in relation to an Advance in Canadian Dollars, 11:00 A.M., Toronto, Ontario time and (b) otherwise, 11:00 A.M., London time.
 
“ Spinco ” means Blue Cube Spinco Inc., a Delaware corporation.
 
“ Spinco Borrower ” has the meaning specified in the introductory paragraph hereto.
 
“ Spinco Credit Agreement ” means the Credit Agreement, dated as of June 23, 2015, among Spinco, the lenders party thereto and Wells Fargo, as administrative agent.
 
“ Submitted Reference Bank Rate ” means, as to any Reference Bank:
 
(a)              in relation to any Revolving Advances denominated in Canadian Dollars for any Interest Period, the rate supplied to the Administrative Agent at its request by such Reference Bank as of the Specified Time on the Quotation Day for Revolving Advances denominated in Canadian Dollars and the applicable Interest Period as the rate at which such Reference Bank is willing to extend credit by the purchase of bankers’ acceptances which have been accepted by banks which are for the time being customarily regarded as being of appropriate credit standing for such purpose with a term to maturity equal to the relevant period;

(b)              in relation to Revolving Advances denominated in Euros for any Interest Period, the rate supplied to the Administrative Agent at its request by such Reference Bank as of the Specified Time on the Quotation Day for Revolving Advances denominated in Euros and the applicable Interest Period as the rate which such Reference Bank assesses to be the rate at which interbank term deposits in Euros and for the relevant period are offered for spot value (T+2) by one prime bank to another prime bank within the EMU zone;

(c)              in relation to Revolving Advances or Term Loans denominated in any currency other than Canadian Dollars or Euros, the rate (rounded upward to four decimal places) supplied to the Administrative Agent at its request by such Reference Bank as of the Specified Time on the Quotation Day for Revolving Advances or Term Loans in the relevant currency and the applicable Interest Period as the rate at which such Reference Bank could borrow funds in the London interbank market in such currency and for the relevant period, were it to do so by asking for and then accepting interbank offers in reasonable market size in that currency and for that period; provided that upon supplying such Submitted Reference Bank Rate to the Administrative Agent pursuant to this clause (c), such Reference Bank shall certify that it has not submitted or shared such Submitted Reference Bank Rate with any individual who is formally designated as being involved in the ICE LIBOR submission process; and

(d)              in relation to Bid Advances, the rate (rounded upward to four decimal places) supplied to the Administrative Agent at its request by such Reference Bank as the rate at which deposits in US Dollars are offered by the principal office of such Reference Bank in London, England to prime banks in the London interbank market at the Specified Time on the Quotation Day in an amount substantially equal to the aggregate amount of such Bid Borrowing and for a period equal to the period from the date of such Bid Advance to its maturity date as specified in the applicable Notice of Bid Borrowing.
 
 
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“ Subordinated Obligations ” has the meaning specified in Section 7.05 .
 
“ Subsidiary ” means, as at any particular time, any Person controlled by the Company the accounts of which would be consolidated with those of the Company in the Company’s consolidated financial statements if such financial statements were to be prepared at such time in accordance with GAAP.
 
“ Swiss Franc ” and the “ SFr ” sign each means lawful currency of Switzerland.
 
“ TARGET Day ” means any day on which the Trans-European Automated Real-time Gross Settlement Express Transfer (TARGET) payment system (or, if such payment system ceases to be operative, such other payment system (if any) determined by the Administrative Agent to be a suitable replacement) is open for the settlement of payments in Euros.
 
“ Taxes ” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, fines, additions to tax or penalties applicable thereto.
 
“ Tax-Exempt Financing ” means a transaction with a governmental unit or instrumentality which involves (i) the issuance by such governmental unit or instrumentality to Persons other than the Company or a Subsidiary of bonds or other obligations on which the interest is exempt from Federal income taxes under Section 103 of the Code and the proceeds of which are applied to finance or refinance the cost of acquisition of equipment or facilities of the Company or any of its subsidiaries, and (ii) participation in the transaction by the Company or a Subsidiary in any manner permitted by this Agreement.
 
“ TDCC ” means The Dow Chemical Company, a Delaware corporation.
 
“ Term Loan Borrowing ” means a borrowing consisting of Term Loans of the same Type (and, in the case of a borrowing consisting of Eurodollar Rate Advances, having the same Interest Period) made by the Term Loan Lenders.
 
“ Term Loan Commitment ” means an Incremental Term Loan Commitment.
 
“ Term Loan Lender ” means any Person with a Term Loan Commitment or an outstanding Term Loan.
 
“ Term Loan Note ” means a promissory note of the Spinco Borrower payable to any Term Loan Lender and its registered assigns, in substantially the form of Exhibit A-3 hereto, evidencing the portion of the Term Loans made to the Spinco Borrower by such Term Loan Lender.
 
“ Term Loans ” means the Initial Term Loans and, if applicable, the Incremental Term Loans (and “ Term Loan ” means any of such Term Loans) and refers to a Base Rate Advance or a Eurodollar Advance (each of which shall be a “ Type ” of Term Loan).
 
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“ Termination Date ” means (a) with respect to the Revolving Commitments and the Letter of Credit Commitments, the Revolving Termination Date, (b) with respect to the Initial Term Loans, the date that is five years after the Closing Date (or the earlier date on which the Initial Term Loans have been accelerated pursuant to Section 6.01 ), and (c) with respect to any Incremental Term Loans, the date determined by the applicable Term Loan Lenders pursuant to Section 2.04(d) (or the earlier date on which the Initial Term Loans have been accelerated pursuant to Section 6.01 ).
 
“ Transactions ” means (a) the consummation of the Internal Separation, (b) the consummation of the Merger, (c) the Refinancing, (d) the issuance by Spinco of its senior unsecured notes to TDCC or, if elected by TDCC in accordance with Section 7.08(e) of the Merger Agreement, the drawing under a senior unsecured bridge facility of an amount not less than the Above Basis Amount (as defined in the Separation Agreement), (e) the issuance by Spinco of its senior unsecured notes, the drawing under a senior unsecured bridge facility or any combination thereof, the proceeds of which will be used, together with the proceeds of the Initial Term Loan, to (i) finance a special cash dividend to TDCC, (ii) pay fees and expenses in connection with the Transactions, (iii) effect the Refinancing and (iv) provide funds for general corporate purposes, (f) the execution, delivery and performance by the Borrowers of this Agreement and the other Loan Documents, the borrowing of the Advances and the issuance of Letters of Credit on the Closing Date and the use of proceeds of such Advances and Letters of Credit and (g) the payment of fees and expenses in connection with the foregoing.
 
“ Type ” shall have the meaning given such term in the definitions of Term Loan and Revolving Advance.
 
“ UCP ” means, with respect to any Letter of Credit, the Uniform Customs and Practice for Documentary Credits, International Chamber of Commerce (“ICC”) Publication No. 600 (or such later version thereof as may be in effect at the time of issuance).
 
“ United States ” or “ U.S. ” means the United States of America.
 
“ Unused Revolving Commitment ” means, with respect to each Revolving Lender at any time, (a) such Revolving Lender’s Revolving Commitment at such time minus (b) the sum of (i) the US Dollar Equivalent of the aggregate principal amount of all Revolving Advances made by such Revolving Lender (in its capacity as a Revolving Lender) and outstanding at such time, plus (ii) such Revolving Lender’s L/C Exposure then outstanding.
 
“ US Dollar Equivalent ” means, on any date, (a) with respect to any amount in US Dollars, such amount, and (b) with respect to any amount in any currency other than US Dollars, the equivalent in US Dollars of such amount, determined by the Administrative Agent pursuant to Section 1.05 using the Exchange Rate with respect to such currency at such time in effect under the provisions of such Section 1.05 .
 
“ US Dollars ” and the “ US$ ” sign each means lawful currency of the United States.
 
“ US Person ” means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Code.
 
“ US Tax Compliance Certificate ” has the meaning assigned thereto in Section 2.14(g) .
 
 
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" Usage ” means, at any time, the sum of the aggregate principal amount of the US Dollar Equivalent of the Revolving Advances and the Bid Advances then outstanding plus the Available Amount of the outstanding Letters of Credit.
 
“ Voting Rights ” means, as to any corporation or any other entity, ordinary voting power (whether associated with outstanding common stock or outstanding preferred stock, or both, or other outstanding equity interests, as applicable) to elect members of the Board of Directors of such corporation or other entity (irrespective of whether or not at the time capital stock of any class or classes of such corporation or entity shall or might have voting power or additional voting power upon the occurrence of any contingency).
 
“ Wells Fargo ” means Wells Fargo Bank, National Association, a national banking association.
 
“ Wholly Owned ” means, with respect to any corporation or other entity, a corporation or other entity of which 100% of the Voting Rights (other than Voting Rights represented by directors’ qualifying shares or shares required by law to be owned by a resident of the relevant jurisdiction) are at the time directly or indirectly owned by the Company, by the Company and one or more other Wholly Owned Subsidiaries, or by one or more other Wholly Owned Subsidiaries.
 
“ Withdrawal Liability ” shall have the meaning given such term under Part I of Subtitle E of Title IV of ERISA.
 
“ Withholding Agent ” means the Borrowers and the Administrative Agent.

Section 1.02                            Other Definitions and Provisions .  With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document or the context otherwise requires: (a) the definitions of terms herein shall apply equally to the singular and plural forms of the terms defined, (b) whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms, (c) the words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”, (d) the word “will” shall be construed to have the same meaning and effect as the word “shall”, (e) any reference herein to any Person shall be construed to include such Person’s successors and assigns (subject to any restrictions on assignment set forth herein), (f) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (g) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement, (h) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights and (i) the term “documents” includes any and all instruments, documents, agreements, certificates, notices, reports, financial statements and other writings, however evidenced, whether in physical or electronic form.

Section 1.03                            Computation of Time Periods .  (a) In this Agreement and the other Loan Documents in the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including” and the words “to” and “until” each means “to but excluding”.

(b)              In this Agreement and the other Loan Documents each reference to a year shall be a reference to the twelve consecutive months beginning January 1 in such year and ending December 31 in such year and each reference to a quarter shall be a reference to one of the three consecutive month periods beginning January 1, April 1, July 1 or October 1, in each year.

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Section 1.04  Accounting Terms .  (a)  All accounting terms not specifically defined herein shall be construed in accordance with GAAP.  “ GAAP ” shall mean generally accepted accounting principles as in effect from time to time; provided that if the Company notifies the Administrative Agent that the Company requests an amendment to any provision hereof to eliminate the effect of any change occurring after the date of this Agreement in GAAP, or in the application thereof, on the operation of such provision (or if the Administrative Agent notifies the Company that the Majority Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP, or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance with Section 10.01 .

(b)              Notwithstanding anything to the contrary contained in paragraph (a) above or the definition of “Capital Lease Obligations”, in the event of an accounting change requiring leases to be capitalized, only those leases (assuming for purposes hereof that they were in existence on the Effective Date) that would constitute capital leases on the Effective Date shall be considered capital leases and all calculations hereunder shall be made accordingly.

Section 1.05     Currency Translation .  The Administrative Agent shall determine the US Dollar Equivalent of each Revolving Advance denominated in a Committed Alternative Currency as of (x) the last Business Day of each fiscal quarter and (y) the date of any borrowing or continuation of any Revolving Advances denominated in a Committed Alternative  Currency (each such date, a “ Calculation Date ”), in each case using the Exchange Rate for such currency in relation to US Dollars in effect on the date that is three Business Days prior to such Calculation Date, and each such amount shall be the US Dollar Equivalent of such Revolving Advance until the next required calculation thereof pursuant to this sentence. The Administrative Agent shall notify the Company and the Revolving Lenders of each calculation of the US Dollar Equivalent of each Revolving Advance.

ARTICLE II

AMOUNTS AND TERMS OF THE ADVANCES AND LETTERS OF CREDIT

Section 2.01  The Revolving Advances, Letters of Credit and Initial Term Loans .  (a)  Revolving Advances .  Each Revolving Lender severally agrees, on the terms and conditions hereinafter set forth, to make Revolving Advances in US Dollars and any Committed Alternative Currency to the Company, the Spinco Borrower or the Canadian Borrower from time to time on any Business Day during the period from the Closing Date until the Revolving Termination Date in an aggregate amount such that the US Dollar Equivalent thereof does not exceed such Lender’s Unused Revolving Commitment; provided that, immediately following the making of such Revolving Advance, the Usage shall not exceed the aggregate amount of the Revolving Commitments of the Revolving Lenders; provided   further that, following the making of any such Revolving Advance denominated in a Committed Alternative Currency, the US Dollar Equivalent of the aggregate amount of Revolving Advances outstanding in any currency other than US Dollars shall not exceed the Alternative Currency Sublimit.  Each Revolving Borrowing shall be in an aggregate amount not less than the Borrowing Minimum or the Borrowing Multiple in excess thereof and shall consist of Advances of the same Type and currency made on the same day by the Revolving Lenders ratably according to their respective Revolving Commitments.  Within the limits of each Revolving Lender’s Revolving Commitment, the Borrowers may borrow, repay pursuant to Section 2.05 , prepay pursuant to Section 2.09 , and reborrow, prior to the Revolving Termination Date, under this Section 2.01(a) . The Revolving Commitments shall automatically terminate if the Closing Date has not occurred on or prior to 11:59 P.M. (New York City time) on December 26, 2015 (or, if the Termination Date (as defined in the Merger Agreement as in effect as of March 26, 2015) is extended pursuant to Section 9.01(a) of the Merger Agreement, March 26, 2016).
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(b)              Letters of Credit .  Each Issuing Bank agrees, on the terms and conditions hereinafter set forth, to issue letters of credit (each a “ Letter of Credit ”) denominated in US Dollars for the account of the Company from time to time on any Business Day during the period from the Closing Date until 30 days before the Revolving Termination Date in an amount such that (i) the L/C Obligations for all Letters of Credit issued by such Issuing Bank do not exceed at any time the lesser of (x) the Letter of Credit Facility at such time and (y) such Issuing Bank’s Letter of Credit Commitment at such time, (ii) the Available Amount for each such Letter of Credit does not exceed an amount equal to the aggregate Unused Revolving Commitments of the Revolving Lenders at the time of issuance thereof and (iii) following the issuance of any such Letter of Credit, the Usage does not exceed the aggregate amount of the Revolving Commitments of the Revolving Lenders.  No Letter of Credit shall have an expiration date later than the earlier of (x) the first anniversary of its date of issuance and (y) five Business Days before the Revolving Termination Date; provided that any Letter of Credit with a one-year term may provide for the renewal thereof for additional one-year periods (which shall in no event extend beyond the date referred to in clause (y) above).  Within the limits referred to above, the Company may request the issuance of Letters of Credit under this Section 2.01(b) , repay any Revolving Advances resulting from drawings thereunder pursuant to Section 2.05 or prepay pursuant to Section 2.09 and request the issuance of additional Letters of Credit under this Section 2.01(b) .  With respect to each letter of credit designated by the Company in writing to the Administrative Agent no later than five Business Days prior to the Closing Date (or such later date as agreed by the Administrative Agent) as an “Existing Letter of Credit” for which the issuer thereof is a Revolving Lender who is either an Issuing Bank or has agreed to be an Issuing Bank in respect of such letter of credit, such letter of credit shall be deemed to constitute a Letter of Credit issued hereunder on the Restatement Date and the Revolving Lender that is an issuer of such Letter of Credit shall be deemed to be an Issuing Bank for such letter of credit; provided that after giving effect to such deemed issuance, in no event shall the Usage exceed the Revolving Commitments of the Revolving Lenders; provided   further that any renewal or replacement of any such letter of credit shall be issued by an Issuing Bank pursuant to the terms of this Agreement.

(c)              Initial Term Loans .  As of the Restatement Date, each Term Loan Lender has made Initial Term Loans in US Dollars to the Spinco Borrower in the aggregate principal amount set forth next to such Lender’s name on Schedule I.  As of the Restatement Date, the aggregate principal amount of all outstanding Initial Term Loans is $1,350,000,000. 

Section 2.02     Making the Advances .  (a)  Making the Term Loans and Revolving Advances .  (i) (A)  Each Term Loan Borrowing and each Revolving Borrowing shall be made on notice, given not later than 11:00 A.M. Local Time, (x) in the case of Eurodollar Rate Advances denominated in US Dollars, on the third Business Day prior to the date of the proposed Borrowing, (y) in the case of Eurodollar Rate Advances denominated in a Committed Alternative Currency, on the fourth Business Day prior to the date of the proposed Revolving Borrowing or (z) in the case of Base Rate Advances, on the day of the proposed Borrowing, by the applicable Borrower to the Administrative Agent, which shall give to each appropriate Lender prompt notice thereof by telecopier.  Each such notice of a Term Loan Borrowing or Revolving Borrowing (as applicable, a “ Notice of Borrowing ”) shall be by telephone, confirmed immediately in writing, in substantially the form of Exhibit B-1 hereto, specifying therein the requested (I) date of such Term Loan Borrowing or Revolving Borrowing, (II) Type of Advances comprising such Term Loan Borrowing or Revolving Borrowing, (III) aggregate amount of such Term Loan Borrowing or Revolving Borrowing, (IV) in the case of a Revolving Borrowing, the applicable Borrower and the currency in which such Revolving Advance is to be made and (V) in the case of a Eurodollar Rate Advance, the Interest Period for each such Term Loan or Revolving Advance.  Each Lender shall, before 1:00 P.M. (Local Time) on the date of such Term Loan Borrowing or Revolving Borrowing make available for the account of its Applicable Lending Office to the Administrative Agent, in the Administrative Agent’s Account, in same day funds, such Lender’s ratable portion of such Term Loan Borrowing or Revolving Borrowing.  After the Administrative Agent’s receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III , the Administrative Agent, as applicable, will make such funds available to the applicable Borrower at the Administrative Agent’s address set forth on Schedule 10.02 . Notwithstanding anything to the contrary contained herein, each Lender at its option may make any Advance by causing any domestic or foreign branch or Affiliate of such Lender to make such Advance; provided that any exercise of such option shall not affect the obligation of the Borrowers to repay such Advances in accordance with the terms of this Agreement and shall not cause the Borrowers to incur as of the date of the exercise of such option any greater liability than it shall then have under Section 2.10 or Section 2.14 .
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(B)              The failure of any Lender to make the Term Loan or Revolving Advance to be made by it as part of any Term Loan Borrowing or Revolving Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Term Loan or Revolving Advance on the date of such Term Loan Borrowing or Revolving Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the Term Loan or Revolving Advance to be made by such other Lender on the date of any Term Loan Borrowing or Revolving Borrowing.

(C)              Any Incremental Term Loans shall be borrowed pursuant to, and in accordance with, Section 2.04(d) .

(ii)              Anything in subsection (i) above to the contrary notwithstanding,

(A)              if any Lender shall, at least one Business Day before the date of any requested Term Loan Borrowing or Revolving Borrowing comprised of Eurodollar Rate Advances, notify the Administrative Agent (with a copy to the applicable Borrower) that the introduction of or any change in or in the interpretation of any law or regulation by any court, authority or agency, or any other governmental, judicial or regulatory body, makes it unlawful, or that any central bank or other Governmental Authority asserts that it is unlawful, for such Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances hereunder, (1) with respect to Advances to be denominated in US Dollars, the right of such Borrower to select Eurodollar Rate Advances for such Term Loan Borrowing or Revolving Borrowing or any subsequent Term Loan Borrowing or Revolving Borrowing, with respect to such Lender (only), shall be suspended until such Lender shall notify the Administrative Agent (with a copy to the applicable Borrower) that the circumstances causing such suspension no longer exist or such Lender shall cease to be a party hereto, and each Term Loan or Revolving Advance comprising such Term Loan Borrowing or Revolving Borrowing shall, with respect to such Lender (only), be a Base Rate Advance of an equivalent amount and for an approximately equivalent term, provided that if all the Lenders so notify the Administrative Agent, the Administrative Agent shall so notify the applicable Borrower and the Notice of Borrowing in respect of such requested Term Loan Borrowing or Revolving Borrowing shall be automatically revoked and (2) with respect to Revolving Advances to be denominated in a Committed Alternative Currency, such Advances shall bear interest at an interest rate reasonably determined by the Administrative Agent, after consultation with the Company and such Lender, to compensate such Lender for the actual costs of obtaining the funds for such Advance in such currency for the applicable period plus the Applicable Margin with respect to Eurodollar Rate Advances; provided that if all the Lenders so notify the Administrative Agent, the Administrative Agent shall so notify the applicable Borrower and the Notice of Borrowing in respect of such requested Revolving Borrowing shall be automatically revoked; provided   further that if the circumstances giving rise to such notice affect only Eurodollar Rate Advances in certain Committed Alternative Currencies, then Revolving Borrowings in other Committed Alternative Currencies will not be affected by the provisions of this Section. Each Lender giving a notice under this subclause (A) shall, promptly after giving such notice, provide the Company (with a copy to the Administrative Agent) with an explanation, in reasonable detail, as to the circumstances causing such suspension;
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(B)              in the event that it is necessary to determine the Eurodollar Rate with reference to the Reference Banks, and if none of the Reference Banks furnish timely information to the Administrative Agent for determining the Eurodollar Rate for Eurodollar Rate Advances comprising any requested Term Loan Borrowing or Revolving Borrowing, (1) the right of the Borrowers to select Eurodollar Rate Advances for any such Term Loan Borrowing or Revolving Borrowing denominated in US Dollars or any subsequent Term Loan Borrowing or Revolving Borrowing denominated in US Dollars shall be suspended until the Administrative Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each Advance comprising such Term Loan Borrowing or Revolving Borrowing shall be a Base Rate Advance and (2) any such Revolving Borrowing denominated in a Committed Alternative Currency or any subsequent Revolving Borrowing denominated in a Committed Alternative Currency shall bear interest at an interest rate reasonably determined by the Administrative Agent, after consultation with the Company and the applicable Lenders, to compensate the applicable Lenders for the actual costs of obtaining the funds for such Revolving Borrowing in such currency for the applicable period plus the Applicable Margin with respect to Eurodollar Rate Advances; and

(C)              if Term Loan Lenders or Revolving Lenders having more than 50% of the Term Loan Commitments or Revolving Commitments, as applicable, shall, at least one Business Day before the date of any requested Term Loan Borrowing or Revolving Borrowing comprised of Eurodollar Rate Advances, notify the Administrative Agent (with a copy to the applicable Borrower) that the Eurodollar Rate for Eurodollar Rate Advances comprising such Term Loan Borrowing or Revolving Borrowing will not adequately reflect the cost to such Lenders of making or funding their respective Eurodollar Rate Advances for such Term Loan Borrowing or Revolving Borrowing, (1) in respect of any such Term Loan Borrowing or Revolving Borrowing denominated in US Dollars, the Notice of Borrowing given in respect of such requested Term Loan Borrowing or Revolving Borrowing shall be automatically revoked and the right of the Borrowers to select Eurodollar Rate Advances for such Term Loan Borrowing or Revolving Borrowing or any subsequent Term Loan Borrowing or Revolving Borrowing shall be suspended until such Lenders shall notify the Administrative Agent (with a copy to the applicable Borrower) and the other Lenders that the circumstances causing such suspension no longer exist and (2) in respect of any such Revolving Borrowing denominated in a Committed Alternative Currency, such Revolving Borrowing shall be made as a Revolving Borrowing bearing interest at an interest rate reasonably determined by the Administrative Agent, after consultation with the Company and the applicable Lenders, to compensate the applicable Lenders for the actual costs of obtaining the funds for such Revolving Borrowing in such currency for the applicable period plus the Applicable Margin with respect to Eurodollar Rate Advances until such Lenders shall notify the Administrative Agent (with a copy to the applicable Borrower) and the other Lenders that the circumstances causing such adjustment no longer exist.  The Lenders giving a notice under this subclause (C) shall, promptly after giving such notice, provide the Company (with a copy to the Administrative Agent) with an explanation, in reasonable detail, as to the circumstances causing such suspension.
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(D)              Anything in subsection (i) above to the contrary notwithstanding, (1) the Borrowers may not select Eurodollar Rate Advances for any Term Loan Borrowing or Revolving Borrowing if the aggregate amount of such Term Loan Borrowing or Revolving Borrowing is less than the Borrowing Minimum and (2) the Eurodollar Rate Advances may not be outstanding as part of more than ten separate Revolving Borrowings.

(iii)              Each Notice of Borrowing (subject to (ii)(A) and (ii)(C) above) shall be irrevocable and binding on the Borrower giving such notice.  In the case of any Term Loan Borrowing or Revolving Borrowing which the related Notice of Borrowing specifies is to be comprised of Eurodollar Rate Advances, the applicable Borrower shall indemnify each Lender against any loss, cost or expense incurred by such Lender as a result of any failure to fulfill on or before the date specified in such Notice of Borrowing for such Term Loan Borrowing or Revolving Borrowing the applicable conditions set forth in Article III , including any loss (excluding loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the Advance to be made by such Lender as part of such Term Loan Borrowing or Revolving Borrowing when such Advance, as a result of such failure, is not made on such date.  Each Lender claiming indemnity for any such loss, cost or expense under this clause (iii) shall provide, at the time of making such claim, the applicable Borrower (with a copy to the Administrative Agent) with reasonable details, including the basis for the calculation thereof, of such loss, cost or expense, provided that, in the absence of manifest error, the amount of such claims so notified shall be conclusive and binding upon such Borrower.

(iv)              Unless the Administrative Agent shall have received notice from a Lender prior to the date of any Term Loan Borrowing or Revolving Borrowing that such Lender will not make available to the Administrative Agent such Lender’s ratable portion of such Term Loan Borrowing or Revolving Borrowing, the Administrative Agent may assume that such Lender has made such portion available to the Administrative Agent on the date of such Term Loan Borrowing or Revolving Borrowing in accordance with subsection (i) of this Section 2.02(a) and the Administrative Agent may, in reliance upon such assumption, make available to the applicable Borrower on such date a corresponding amount.  If and to the extent that such Lender shall not have so made such ratable portion available to the Administrative Agent, such Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each date from the date such amount is made available to such Borrower until the date such amount is repaid to the Administrative Agent, at (i) in the case of a Borrower, the Base Rate and (ii) in the case of such Lender, (1) in the case of Advances denominated in US Dollars, the Federal Funds Rate, (2) in the case of Advances denominated in Canadian Dollars, the Canadian Interbank Rate and (3) in the case of Advances denominated in any other Committed Alternative Currency, a rate determined by the Administrative Agent in accordance with banking rules on interbank compensation in the relevant currency.  If the applicable Borrower shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the applicable Borrower the amount of such interest paid by the applicable Borrower for such period.  If such Lender shall repay to the Administrative Agent such corresponding amount, such amount so repaid shall constitute such Lender’s Advance as part of such Term Loan Borrowing or Revolving Borrowing for purposes of this Agreement.  Any payment by a Borrower shall be without prejudice to any claim such Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
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(b)              Issuance of and Drawings and Reimbursement Under Letters of Credit .

(i)              Request for Issuance .  (A) Each Letter of Credit shall be issued or amended, as the case may be, upon notice, given not later than 11:00 A.M. (New York City time) on the fifth Business Day prior to the date of the proposed issuance of such Letter of Credit (or such shorter notice period as may be agreed by the applicable Issuing Bank), by the Company to any Issuing Bank, which shall give the Administrative Agent prompt written notice thereof.  Each such notice of issuance of a Letter of Credit (a “ Notice of Issuance ”) shall be by telephone (or as otherwise agreed between the Company and the applicable Issuing Bank), confirmed immediately in writing, specifying therein the requested (I) date of such issuance (which shall be a Business Day), (II) Available Amount of such Letter of Credit, (III) expiration date of such Letter of Credit, (IV) name and address of the beneficiary of such Letter of Credit, (V) form of such Letter of Credit, (VI) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; (VII) the purpose and nature of the requested Letter of Credit and (VIII) such other matters as the applicable Issuing Bank may require and shall be accompanied by such application and agreement for letter of credit (if any) and other documents related to such Letter of Credit as such Issuing Bank may reasonably specify to the Company for use in connection with such requested Letter of Credit (a “ Letter of Credit Agreement ”).  If the requested form of such Letter of Credit is acceptable to the applicable Issuing Bank in its reasonable discretion, such Issuing Bank will, upon fulfillment of the applicable conditions set forth in Article III and provided such Issuing Bank has not received written notice from any Revolving Lender by at least one Business Day prior to the requested date of issuance or amendment of the applicable Letter of Credit notifying such Issuing Bank that one or more applicable conditions contained in Article III shall not then be satisfied, enter into the applicable amendment or issue such Letter of Credit in accordance with such Issuing Bank’s usual and customary business practices or as otherwise agreed with the Company in connection with such issuance.  In the event and to the extent that the provisions of any Letter of Credit Agreement shall conflict with this Agreement, the provisions of this Agreement shall govern.

(ii)              Participations .  By the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof) and without any further action on the part of any Issuing Bank or the Revolving Lenders, each Issuing Bank hereby grants to each Revolving Lender, and each Revolving Lender hereby acquires from such Issuing Bank, a participation in such Letter of Credit equal to such Lender’s Pro Rata Share of the aggregate Available Amount of such Letter of Credit.  The Company hereby agrees to each such participation.  In consideration and in furtherance of the foregoing, each Revolving Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the Issuing Bank, such Lender’s Pro Rata Share of each drawing made under a Letter of Credit funded by the Issuing Bank and not reimbursed by the Company on the date made, or of any reimbursement payment required to be refunded to the Company for any reason.  Each Revolving Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of an Event of Default or any event which, with the giving of notice or lapse of time, or both, would constitute an Event of Default, or reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.  Each Revolving Lender further acknowledges and agrees that its participation in each Letter of Credit will be automatically adjusted to reflect such Lender’s Pro Rata Share of such Letter of Credit at each time such Lender’s Revolving Commitment is amended pursuant to Section 2.04 , pursuant to an assignment in accordance with Section 9.02 or otherwise pursuant to this Agreement.
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(iii)              Drawing and Reimbursement .  Upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the applicable Issuing Bank shall notify the Company and the Administrative Agent thereof.  The payment by any Issuing Bank of a draft drawn under any Letter of Credit shall constitute for all purposes of this Agreement the making by such Issuing Bank of a Revolving Advance, which shall be a Base Rate Advance, in the amount of such draft.  The Administrative Agent shall promptly notify each Revolving Lender of such notice, and each Revolving Lender shall pay to the Administrative Agent such Lender’s Pro Rata Share of such outstanding Revolving Advance, by making available for the account of its Applicable Lending Office to the Administrative Agent for the account of such Issuing Bank, by deposit to the Administrative Agent, in the Administrative Agent’s Account, in same day funds, an amount equal to the portion of the outstanding principal amount of such Revolving Advance to be funded by such Lender.  Promptly after receipt thereof, the Administrative Agent shall transfer such funds to such Issuing Bank.  Each Revolving Lender agrees to fund its Pro Rata Share of an outstanding Revolving Advance made by an Issuing Bank as a result of a drawing under the Letter of Credit on (A) the Business Day on which demand therefor is made by the Issuing Bank, provided that notice of such demand is given not later than 1:00 P.M.  (New York City time) on such Business Day, or (B) the first Business Day next succeeding such demand if notice of such demand is given after such time.  If and to the extent that any Revolving Lender shall not have so made the amount of such Revolving Advance available to the Administrative Agent, such Lender agrees to pay to the Administrative Agent forthwith on demand such amount together with interest thereon, for each day from the date of demand by the applicable Issuing Bank until the date such amount is paid to the Administrative Agent, at the Federal Funds Rate for its account or the account of such Issuing Bank, as applicable.  If such Lender shall pay to the Administrative Agent such amount for the account of such Issuing Bank on any Business Day, such amount so paid in respect of principal shall constitute a Revolving Advance made by such Lender on such Business Day for purposes of this Agreement, and the outstanding principal amount of the Revolving Advance made by the applicable Issuing Bank shall be reduced by such amount on such Business Day.  The applicable Issuing Bank may send a Letter of Credit or conduct any communication to or from the beneficiary via the Society for Worldwide Interbank Financial Telecommunication message or overnight courier, or any other commercially reasonable means of communicating with a beneficiary.

(iv)              Letter of Credit Reports .  Each Issuing Bank shall furnish (A) to the Administrative Agent on the first Business Day of each week a written report summarizing issuance and expiration dates of Letters of Credit issued by it during the previous week and drawings during such week under all Letters of Credit issued by it and (B) to the Administrative Agent on the first Business Day of each calendar quarter a written report setting forth the average daily aggregate Available Amount during the preceding calendar quarter of all Letters of Credit issued by it.

(v)              Failure to Make Revolving Advances .  The failure of any Revolving Lender to make the Revolving Advance to be made by it on the date specified in Section 2.02(b)(iii) shall not relieve any other Revolving Lender of its obligation hereunder to make its Revolving Advance on such date, but no Revolving Lender shall be responsible for the failure of any other Revolving Lender to make the Revolving Advance to be made by such other Revolving Lender on such date.
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(c)              Applicability of ISP and UCP; Limitation of Liability .  Unless otherwise expressly agreed by the applicable Issuing Bank and the Company when a Letter of Credit is issued, (i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of the UCP shall apply to each commercial Letter of Credit.  Notwithstanding the foregoing, the applicable Issuing Bank shall not be responsible to the Company for, and such Issuing Bank’s rights and remedies against the Company shall not be impaired by, any action or inaction of such Issuing Bank required or permitted under any law, order, or practice that is required or permitted to be applied to any Letter of Credit or this Agreement, including the law or any order of a jurisdiction where such Issuing Bank or the beneficiary is located, the practice stated in the ISP or UCP, as applicable, or in the decisions, opinions, practice statements, or official commentary of the ICC Banking Commission, the Bankers Association for Finance and Trade - International Financial Services Association (BAFT-IFSA), or the Institute of International Banking Law & Practice, whether or not any Letter of Credit chooses such law or practice.

(d)              Making the Bid Advances .

(i)              Each Revolving Lender severally agrees that the Company may make Bid Borrowings denominated in US Dollars under this Section 2.02(d) from time to time on any Business Day during the period from the Closing Date until the date occurring one day prior to the Revolving Termination Date in the manner set forth below; provided that, following the making of each Bid Borrowing, the Usage shall not exceed the aggregate amount of the Revolving Commitments of the Revolving Lenders.

(A)              The Company may request a Bid Borrowing under this Section 2.02(d) by delivering to the Administrative Agent, by telephone, confirmed immediately in writing, a notice of a Bid Borrowing (a “ Notice of Bid Borrowing ”), in substantially the form of Exhibit B-2 hereto, specifying (I) the date and aggregate amount of the proposed Bid Borrowing, (II) the type of interest rate applicable to such Bid Borrowing (which shall be a margin above or below the Eurodollar Rate or a fixed rate), (III) the interest period or periods applicable to such Bid Borrowing (which shall be from 14 days up to 12 months in the case of Eurodollar Rate related Bid Borrowings and from seven days up to 365 days in the case of fixed rate Bid Borrowings), (IV) the maturity date for repayment of each Bid Advance to be made as part of such Bid Borrowing (which maturity date may not be later than the Revolving Termination Date), (V) the interest payment date or dates relating thereto, (VI) the time after which the offer of any Revolving Lender bidding for such Bid Borrowing cannot be accepted by the Company (which shall not be later than 10:30 A.M., New York City time, on the date of the proposed Bid Borrowing in the case of a fixed rate Bid Borrowing and on the third Business Day prior to the date of the proposed Bid Borrowing in the case of a Eurodollar Rate Bid Borrowing), and (VII) any other terms to be applicable to such Bid Borrowing, not later than 9:00 A.M. (New York City time) (x) at least one Business Day prior to the proposed Bid Borrowing if the Company shall specify in the Notice of Bid Borrowing that the rates of interest to be offered by Revolving Lenders shall be fixed rates and (y) at least three Business Days prior to the proposed Bid Borrowing, if the Company shall instead specify in the Notice of Bid Borrowing that the rates to be offered by the Revolving Lenders shall be a margin above or below the Eurodollar Rate.  The Administrative Agent shall in turn notify each Revolving Lender of each request for a Bid Borrowing received by it from the Company by sending such Lender a copy of the related Notice of Bid Borrowing.
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(B)              Each Revolving Lender shall, if, in its sole discretion, it elects to do so, irrevocably offer to make one or more Bid Advances to the Company as part of such proposed Bid Borrowing at a rate or rates of interest, with maturity date or dates, and with a maximum principal amount that may be accepted by the Company, each as specified by such Lender in its sole discretion, by notifying the Administrative Agent (which shall give prompt notice thereof to the Company) by telephone before 9:30 A.M. (New York City time), confirmed in writing before 10:30 A.M. (New York City time), (I) on the date of such proposed Bid Borrowing, if the Company shall have specified in the Notice of Bid Borrowing that the rates of interest to be offered by the Revolving Lenders were to be fixed rates per annum and (II) on the second Business Day prior to the proposed Bid Borrowing, if the Company shall have instead specified in the Notice of Bid Borrowing that the rates of interest to be offered by the Revolving Lenders were to be Eurodollar Rates, of the maximum amount of each Bid Advance which such Lender would be willing to make as part of such proposed Bid Borrowing (which amounts may, subject to the proviso to the first sentence of this Section 2.02(d)(i) , exceed such Lender’s Revolving Commitment), the rate or rates of interest and maturity date or dates therefor and such Lender’s Applicable Lending Office with respect to such Bid Advance; provided that if the Administrative Agent in its capacity as a Revolving Lender shall, in its sole discretion, elect to make any such offer, it shall notify the Company of such offer at least 30 minutes before the time and on the date on which notice of such election is to be given to the Administrative Agent by the other Revolving Lenders.  If any Revolving Lender shall elect not to make such an offer, such Lender shall so notify the Administrative Agent by telephone, confirmed immediately in writing, before 9:30 A.M. (New York City time) on the date on which notice of such election is to be given to the Administrative Agent by the other Revolving Lenders and such Lender shall not be obligated to, and shall not, make any Bid Advance as part of such Bid Borrowing; provided that the failure by any Revolving Lender to give such notice shall not cause such Lender to be obligated to make any Bid Advance as part of such proposed Bid Borrowing.

(C)              The Company shall, in turn, not later than the time after which the Company cannot accept the bid of any Revolving Lender, as specified by the Company in the Notice of Bid Borrowing delivered by it in respect of such proposed Bid Borrowing, (I) on the date of such proposed Bid Borrowing, if the Company shall have specified in the Notice of Bid Borrowing that the rates of interest to be offered by the Revolving Lenders were to be fixed rates per annum and (II) on the third Business Day prior to the proposed Bid Borrowing, if the Company shall have instead specified in the Notice of Bid Borrowing that the rates of interest to be offered by the Revolving Lenders were to be Eurodollar Rates, either,

(x)              cancel such Bid Borrowing by giving the Administrative Agent notice by telephone, confirmed immediately in writing, to that effect, or

(y)              accept one or more of the offers made by any Revolving Lender or Revolving Lenders pursuant to paragraph (B) above, in ascending order of the effective cost to the Company (and if two or more of such offers have an equal effective cost to the Company, the Company shall accept each such equal offer in the proportion that the amount of each such equal offer bears to the aggregate amount of all offers at such equal effective cost made by the Revolving Lenders making such equal offers), provided that if the order referred to above would result in the acceptance of an offer by any Revolving Lender in an aggregate amount of less than US$5,000,000, the Company shall accept such amounts as, in its discretion, it chooses to ensure that no offer of a Revolving Lender is accepted for an aggregate amount of less than US$5,000,000; such acceptance shall be made by the Company giving notice by telephone, confirmed immediately in writing, to the Administrative Agent of the amount of each Bid Advance (which amount shall be equal to or less than the maximum amount notified to the Company by such Lender for such Bid Advance pursuant to paragraph (B) above) to be made by such Lender as part of such Bid Borrowing, and reject any remaining offers made by Revolving Lenders pursuant to paragraph (B) above by giving the Administrative Agent notice to that effect.
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(D)              If the Company notifies the Administrative Agent that such Bid Borrowing is cancelled pursuant to paragraph (C)(x) above, the Administrative Agent shall give prompt notice thereof to the Revolving Lenders and such Bid Borrowing shall not be made.

(E)              If the Company accepts one or more of the offers made by any Revolving Lender or Revolving Lenders pursuant to paragraph (C)(y) above, the Administrative Agent shall in turn promptly notify by telephone, confirmed immediately in writing, (I) each Revolving Lender that has made an offer as described in paragraph (B) above, of the date and aggregate amount of such Bid Borrowing and whether or not any offer or offers made by such Lender pursuant to paragraph (B) above have been accepted by the Company, (II) each Revolving Lender that is to make a Bid Advance as part of such Bid Borrowing, of the amount of each Bid Advance to be made by such Lender as part of such Bid Borrowing, and (III) each Revolving Lender that is to make a Bid Advance as part of such Bid Borrowing, upon receipt, that the Administrative Agent has received forms of documents appearing to fulfill the applicable conditions set forth in Article III .  Each Revolving Lender that is to make a Bid Advance as part of such Bid Borrowing shall, before 12:00 noon (New York City time) on the date of such Bid Borrowing specified in the notice received from the Administrative Agent pursuant to clause (I) of the preceding sentence or any later time when such Lender shall have received notice from the Administrative Agent pursuant to clause (III) of the preceding sentence, make available for the account of its Applicable Lending Office to the Administrative Agent, in the Administrative Agent’s Account, in same day funds, such Lender’s portion of such Bid Borrowing.  Upon fulfillment of the applicable conditions set forth in Article III and after receipt by the Administrative Agent of such funds, the Administrative Agent will make such funds available to the Company at the Administrative Agent’s address set forth on Schedule 10.02 .  Promptly after each Bid Borrowing the Administrative Agent will notify each Revolving Lender of the amount of the Bid Borrowing and the dates upon which such Bid Borrowing commenced and will terminate.

(F)              The Company shall indemnify each Revolving Lender against any loss, cost, or expense incurred by such Lender as a result of any failure to fulfill on or before the date specified for such Bid Borrowing the applicable conditions set forth in Article III , including any loss (excluding loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired or maintained by such Lender to fund the Bid Advance to be made by such Lender as part of such Bid Borrowing when such Bid Advance, as a result of such failure, is not made on such date.  Each Revolving Lender claiming indemnity for such loss, cost or expense under this subclause (F) shall provide, at the time of making such claim, the Company (with a copy to the Administrative Agent) with reasonable details, including the basis for the calculation thereof, of such loss, cost or expense, provided that, in the absence of manifest error, the amount of such claim so notified shall be conclusive and binding upon the Company.
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(G)              In the case of a proposed Bid Borrowing comprised of Eurodollar Rate related Bid Advances, the Administrative Agent shall, as soon as possible, notify the Company and the Revolving Lenders of the applicable Eurodollar Rate.

(ii)              Each Bid Borrowing shall be in an aggregate amount not less than US$5,000,000 or an integral multiple of US$1,000,000 in excess thereof and, following the making of such Bid Borrowing, shall not result in the limitations set forth in the proviso to the first sentence of Section 2.02(d)(i) being exceeded.

(iii)              Within the limits and on the conditions set forth in this Section 2.02(d) , the Company may from time to time borrow under this Section 2.02(d) , repay or prepay pursuant to subsection (iv) below, and reborrow prior to the Revolving Termination Date under this Section 2.02(d) ; provided , that a Bid Borrowing shall not be made within three Business Days of the date of any other Bid Borrowing.

(iv)              The Company shall repay to the Administrative Agent for the account of each Revolving Lender which has made a Bid Advance on the maturity date of each Bid Advance (such maturity date being that specified by the Company for repayment of such Bid Advance in the related Notice of Bid Borrowing delivered pursuant to subsection (i)(A) above and provided in the Bid Note evidencing such Bid Advance), the then unpaid principal amount of such Bid Advance.  The Company shall have no right to prepay any principal amount of any Bid Advance unless, and then only on the terms, specified by the Company for such Bid Advance in the related Notice of Bid Borrowing delivered pursuant to subsection (i)(A) above and provided in the Bid Note evidencing such Bid Advance (or with the consent of the Revolving Lender holding such Bid Note).

(v)              The Company shall pay interest on the unpaid principal amount of each Bid Advance from the date of such Bid Advance to the date the principal amount of such Bid Advance is repaid in full, at the rate of interest for such Bid Advance specified by the Revolving Lender making such Bid Advance in its notice with respect thereto delivered pursuant to subsection (i)(B) above, payable on the interest payment date or dates specified by the Company for such Bid Advance in the related Notice of Bid Borrowing delivered pursuant to subsection (i)(A) above, as provided in the Bid Note evidencing such Bid Advance; provided that any amount of principal which is not paid when due (whether at stated maturity, by acceleration or otherwise) shall bear interest, from the date on which such amount is due until such amount is paid in full, payable on demand, at a rate per annum equal at all times to 2.00% per annum above the Base Rate.

(vi)              The Indebtedness of the Company resulting from each Bid Advance made to the Company as part of a Bid Borrowing shall be evidenced by a separate Bid Note of the Company payable to the Revolving Lender making such Bid Advance and its registered assigns.

Section 2.03   Fees .

(a)              Commitment Fee .  Subject to Section 2.19(a)(iii)(A) , the Company  agrees to pay to the Administrative Agent for the account of each Lender (other than any Defaulting Lender) a commitment fee on the average daily aggregate amount of the Lenders’ Unused Revolving Commitments from the Closing Date in the case of each Lender as of the Closing Date and from the effective date specified in the Assignment and Assumption or Assumption Agreement pursuant to which any other Person became a Lender in the case of each other Lender until the Revolving Termination Date at the Commitment Fee Rate, payable quarterly in arrears after the Closing Date.
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(b)              Letter of Credit Fees .

(i)              The Company shall pay to the Administrative Agent for the account of each Revolving Lender a commission on such Lender’s Pro Rata Share of the average daily aggregate Available Amount of all Letters of Credit outstanding from time to time at a rate per annum equal to the Applicable Margin for Eurodollar Rate Advances, payable quarterly in arrears and on the Revolving Termination Date.

(ii)              The Company shall pay to each Issuing Bank, for its own account, a fronting fee equal to 0.125% per annum on the daily Available Amount of each Letter of Credit issued by such Issuing Bank, payable quarterly in arrears, and shall pay such other commissions, issuance fees, transfer fees and other fees and charges in connection with the issuance or administration of each Letter of Credit as the Company and such Issuing Bank shall agree.

(c)              Administrative Agent’s Fees .  The Company shall pay to the Administrative Agent for its own account such fees as may from time to time be agreed between the Company and the Administrative Agent.

Section 2.04   Reduction, Increase and Extension of the Commitments/Incremental Term Loans/Substitution of Lenders .

(a)              Voluntary Commitment Reductions .  The Company shall have the right, upon at least two Business Days’ notice to the Administrative Agent, to terminate in whole or permanently reduce ratably in part the Term Loan Commitments or the Revolving Commitments of the Lenders or the Letter of Credit Commitments of the Issuing Banks, provided that (i) each partial reduction shall be in the aggregate amount of US$10,000,000 or an integral multiple of US$1,000,000 in excess thereof and (ii) any notice of termination may state that such notice is conditioned upon the effectiveness of other credit facilities, the incurrence of other Indebtedness or the issuance of equity interests of the Company or any of its Subsidiaries, in which case such notice may be revoked by the Company (by notice to the Administrative Agent) if such condition is not satisfied.

(b)              Extension of Termination Date .  Not later than the date 45 days prior to the applicable Termination Date then in effect, the Company may deliver to the Administrative Agent a notice requesting that the Commitments and Term Loans be extended to such date as the Company may specify in such notice (the “ Extended Termination Date ”), and the Administrative Agent shall promptly forward such notice to the Lenders.  Within 10 days after its receipt of any such notice, each Lender shall notify the Administrative Agent of its willingness or unwillingness so to extend all of its Commitment(s) and Term Loans.  Any Lender which shall fail so to notify the Administrative Agent within such period shall be deemed to have declined to extend its Commitment and Term Loans.  In the event that Lenders having Commitments and outstanding Term Loans equal to 35% or more of the aggregate Commitments and Term Loans outstanding at such time shall be willing to extend their respective Commitments and Term Loans, the Administrative Agent shall so notify the Company and each Lender and the applicable Termination Date for each consenting Lender shall without further action be extended to the Extended Termination Date.  In the event that any Lender shall be unwilling to extend its Commitment(s) and Term Loans, the Commitment(s) and Term Loans of such Lender will not be extended and the applicable Termination Date as to that Lender shall remain unchanged. The scheduled amortization payments of principal of any extended Term Loans occurring after the original applicable Termination Date shall be determined by the Term Loan Lenders that have agreed to such extension and the Company.  The Company may replace any Lender that has not agreed to extend its Commitments and Term Loans (a “ Non-Extending Lender ”) with an Assuming Lender pursuant to Section 2.04(c) .  Notwithstanding the terms of Section 10.01 , the Company and the Administrative Agent shall be entitled (with the consent of the extending Lenders, but without the consent of any other Lenders) to enter into any amendments to this Agreement that the Administrative Agent and the Company believe are necessary to appropriately reflect any extension pursuant to this Section 2.04(b) .
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(c)              Optional Termination and Substitution of Non-Extending Lenders .  The Company may, upon not less than two Business Days prior notice to a Non-Extending Lender or Non-Extending Lenders, terminate in whole the Commitment(s) of such Lender or Lenders and arrange in respect of each terminated Lender for one or more banks or other financial institutions (“ Assuming Lender or Lenders ”), which may include one or more of the Lenders, but no Lender shall have any obligation, to assume a Commitment equal to or Commitments in aggregate amount equal to the amount of the Commitment of the terminated Lender, provided that no such termination shall be made unless, at such time, no event has occurred and is continuing which constitutes an Event of Default.  Such termination shall be effective (i) with respect to each such terminated Lender’s Term Loan Commitment, Term Loans and Revolving Commitment, on the date set forth in such notice, provided , however , that such date shall be no earlier than two Business Days after receipt of such notice or (ii) in the event that an Advance is outstanding from such terminated Lender which is to be paid in connection with such termination, on the last day of the then current Interest Period relating to such Advance.  Such assumption shall be effective on the date specified in (i) or (ii) above, as the case may be, provided , however , that each Assuming Lender shall have delivered to the other Lenders, on or prior to such date, an agreement in form and substance satisfactory to the Company and the Administrative Agent (an “ Assumption Agreement ”) in substantially the form of Exhibit D hereto.  The term “Lender” as used in this Agreement immediately following such assumption shall include an Assuming Lender.  Notwithstanding the provisions of this Section 2.04(c) , termination or substitution shall not be effective unless the Assuming Lender meets, at the time of substitution, the criteria set forth in this Agreement for an “Eligible Assignee” and shall have received any consents required by Section 9.02 as if such Assuming Lender were acquiring its Commitment or Advance by assignment in accordance with Section 9.02 .

Upon the termination of a Non-Extending Lender’s Commitment(s) under this Section 2.04(c) , the Company will pay or cause to be paid all principal of, and interest accrued to the date of such payment on, Advances owing to such Lender and pay any fees accrued to such Lender pursuant to the provisions of Section 2.03 with respect to the Commitment which is terminated, any amounts payable pursuant to the provisions of Section 10.04 and any other amounts payable to such Lender hereunder with respect to the Commitment which is terminated or Advances which are paid; and upon such payments, the obligations of such Lender hereunder shall, by the provisions hereof, be released and discharged, and it shall be deemed to have relinquished its rights under this Agreement (other than any rights under Section 10.06 ).

(d)              Revolving Commitment Increases and Incremental Term Loans .

(i)              The Company may at any time after the Closing Date but in any event, unless the Administrative Agent otherwise agrees, not more than twice in any calendar year prior to the applicable Termination Date, by notice to the Administrative Agent, request (x) the establishment of one or more incremental term loan commitments (an “ Incremental Term Loan Commitment ”) to make incremental term loans (each, an “ Incremental Term Loan ”) and/or (y) that the aggregate amount of the Revolving Commitments be increased (each, a “ Revolving Commitment Increase ” and, together with the Incremental Term Loan Commitments, the “ Incremental Loan Commitments ”), to be effective as of, in the case of a Revolving Commitment Increase, a date that is at least 90 days prior to the applicable scheduled Termination Date then in effect for the Revolving Commitments or, in the case of an Incremental Term Loan Commitment, a date prior to the applicable scheduled Termination Date then in effect for the Initial Term Loans (the “ Increase Date ”) as specified in the related notice to the Administrative Agent; provided that (A) the total aggregate principal amount for all such Incremental Loan Commitments incurred pursuant to this Section 2.04(d) (other than Incremental Loan Commitments referred to in the immediately succeeding sentence) shall not exceed US$500,000,000, (B) no Event of Default, or any event which, with the giving of notice or lapse of time, or both, would constitute an Event of Default, shall have occurred and be continuing on such Increase Date, (C) the non-pricing related terms and conditions of any Incremental Term Loan (taken as a whole) shall be no more restrictive to the applicable Borrower than those applicable to the Initial Term Loan as set forth herein (taken as a whole) are to the Company and its Subsidiaries, (D) no Incremental Term Loan shall have a shorter weighted average life to maturity than the remaining weighted average life to maturity of the Initial Term Loan or a maturity date earlier than the current applicable Termination Date and (E) with respect to any Incremental Term Loan Commitments and any Incremental Term Loans established on or prior to the date that is 15 calendar days after the Closing Date, the pricing (taking into account original issue discount and upfront and similar fees) of such Incremental Term Loan Commitments and Incremental Term Loan shall be no more favorable to the lenders thereof than the pricing (taking into account original issue discount and upfront and similar fees) of the Initial Term Loans.  Notwithstanding the limitation on incurring Incremental Term Loans on or prior to the Closing Date or not more than twice in any calendar year and notwithstanding the limitation set forth in clause (A) of the immediately preceding proviso,  the Company may on, or prior to the Closing Date and through the date that is 15 calendar days after the Closing Date, request the establishment of Incremental Term Loan Commitments, to be effective on or after the Closing Date and on or prior to the date that is 15 calendar days after the Closing Date, to refinance the Indebtedness outstanding under the JV Credit Agreement; provided that (1) the aggregate amount of such Incremental Term Loan Commitments shall not exceed the aggregate principal amount of the Indebtedness outstanding under the JV Credit Agreement as of the Effective Date (as such amount may be reduced from time to time) plus the reasonable costs, expenses, accrued interest or premiums in connection with such refinancing and (2) such Incremental Term Loan Commitments shall be subject to clauses (B) through (E) of the proviso in the immediately preceding sentence. Each Incremental Loan Commitment shall be a minimum amount of US$10,000,000 and in multiples of US$1,000,000 in excess thereof.
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(ii)              The Administrative Agent shall notify the applicable Lenders and such other Eligible Assignees as the Company may identify thereof promptly of a request by the Company for an Incremental Loan Commitment, which notice shall include (w) the proposed amount of such requested Incremental Loan Commitment and whether such Incremental Loan Commitment is an Incremental Term Loan Commitment or Revolving Commitment Increase, (x) with respect to any proposed Incremental Term Loan Commitment, the Borrower thereof (which shall be the Spinco Borrower), (y) the proposed Increase Date and (z) the date by which Lenders or other Eligible Assignees wishing to participate in the Incremental Loan Commitment must commit to any increase in the amount of their respective Commitments, which date shall not be less than 10 Business Days from the date of delivery of such notice to the Lenders or other Eligible Assignees (the “ Commitment Date ”).  Each such Lender that is willing to participate in such Incremental Loan Commitment (an “ Incremental Lender ”) and each such Eligible Assignee that agrees to participate in such Incremental Loan Commitment (a “ New Lender ”), in its sole discretion, shall give written notice to the Administrative Agent on or prior to the Commitment Date of the amount by which it is willing to participate in such Incremental Loan Commitment; provided that the minimum Commitment of each such New Lender that becomes a party to this Agreement pursuant to this Section 2.04(d) , shall be at least equal to US$5,000,000.  If agreement is reached on or prior to the Commitment Date with any Incremental Lenders and New Lenders as to an Incremental Loan Commitment (which may be less than but not greater than specified in the applicable notice from the Company), such agreement to be evidenced by a notice in reasonable detail from the Company to the Administrative Agent on or prior to the Commitment Date, such New Lenders, if any, shall become Lenders hereunder as of the Increase Date and the Commitments of such Incremental Lenders and such New Lenders shall become or be, as the case may be, as of the Increase Date, the amounts specified in such notice; provided that:
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(1)              the Administrative Agent shall have received (with copies for each Lender, including each such New Lender) by no later than 10:00 A.M. (New York City time) on the Increase Date a copy, certified on the Increase Date by the Secretary, an Assistant Secretary or a comparable official of the Company of the resolutions adopted by the Board of Directors of the Company authorizing such Incremental Loan Commitment;

(2)              each such New Lender shall have delivered to the Administrative Agent, by no later than 10:00 A.M. (New York City time) on the Increase Date, an appropriate Assumption Agreement, duly executed by such New Lender, the Company and the Spinco Borrower (and in respect of a Revolving Commitment Increase, the Canadian Borrower);

(3)              each such Incremental Lender shall have delivered to the Administrative Agent, by no later than 10:00 A.M. (New York City time) on the Increase Date, (A) its existing Revolving Note or Term Loan Note (if applicable) and (B) confirmation in writing satisfactory to the Administrative Agent as to its amount of the Incremental Loan Commitment; and

(4)              to the extent required by Section 9.02 if the applicable Incremental Lender or New Lender were acquiring its Incremental Loan Commitments by assignment, the consent of the Company, the Administrative Agent and the Issuing Banks shall have been received with respect to such Incremental Lender or New Lender by no later than 10:00 A.M. (New York City time ) on the Increase Date.

(iii)              In the event that the Administrative Agent shall have received notice from the Company as to its agreement to an Incremental Loan Commitment on or prior to the Commitment Date and each of the actions provided for in clauses (ii)(1) through (ii)(4) above shall have occurred prior to 10:00 A.M. (New York City time) on the Increase Date to the satisfaction of the Administrative Agent, the Administrative Agent shall notify the Lenders (including any New Lenders) and the Company of the occurrence of such Incremental Loan Commitment promptly and in any event no later than 1:00 P.M. (New York City time) on the Increase Date and shall record in the Register the relevant information with respect to each Incremental Lender and New Lender.

(iv)              In the event that (A) the Administrative Agent shall not have received notice from the Company as to such agreement on or prior to the Commitment Date, (B) the Company shall, by notice to the Administrative Agent prior to the Increase Date, withdraw its proposal for an Incremental Loan Commitment or (C) any of the actions provided for above in clauses (ii)(1) through (ii)(4) above shall not have occurred by 10:00 A.M. (New York City time) on the Increase Date, such proposal by the Company shall be deemed not to have been made.  In such event, any actions theretofore taken under clauses (ii)(1) through (ii)(3) above shall be deemed to be of no effect and all the rights and obligations of the parties shall continue as if no such proposal had been made.
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(v)              In the case of each Revolving Commitment Increase, if (x) Revolving Advances are outstanding under the Revolving Commitments and (y) the applicable Revolving Commitment Increase is not ratable among the Revolving Lenders, each applicable Incremental Lender and each New Lender shall, (1) in the case of a New Lender, before 2:00 P.M. (Local Time) on the Increase Date, make available (A) for the account of its Domestic Lending Office to the Administrative Agent, in the Administrative Agent’s Account, in US Dollars in same day funds, an amount equal to such New Lender’s ratable portion of the Revolving Borrowings denominated in US Dollars then outstanding (calculated based on its Revolving Commitment as a percentage of the aggregate Revolving Commitments after giving effect to the relevant Revolving Commitment Increase) and (B) for the account of its Eurodollar Lending Office to the Administrative Agent, in the Administrative Agent’s Account, an amount equal to such New Lender’s ratable portion of the Revolving Borrowings denominated in Committed Alternative Currencies then outstanding (calculated based on its Revolving Commitment as a percentage of the aggregate Revolving Commitments after giving effect to the relevant Revolving Commitment Increase), which amount shall be paid in the applicable Alternative Currencies in same day funds (with payment in each such currency to be made ratably according to the outstanding Revolving Borrowings denominated in such Alternative Currency) and (2) in the case of an Incremental Lender, before 2:00 P.M. (Local Time) on the Increase Date, make available (A) for the account of its Domestic Lending Office, to the Administrative Agent’s Account, in US Dollars in same day funds, (i) such Incremental Lender’s ratable portion of the Revolving Borrowings denominated in US Dollars then outstanding (calculated based on its Revolving Commitment as a percentage of the aggregate Revolving Commitments outstanding after giving effect to the relevant Revolving Commitment Increase) over (ii) such Incremental Lender’s ratable portion of the Revolving Borrowings denominated in US Dollars then outstanding (calculated based on its Revolving Commitment (without giving effect to the relevant Revolving Commitment Increase) as a percentage of the aggregate Revolving Commitments (without giving effect to the relevant Revolving Commitment Increase) and (B) for the account of its Eurodollar Lending Office, to the Administrative Agent’s Account, an amount (which amount shall be paid in the applicable Committed Alternative Currencies in same day funds) equal to (i) such Incremental Lender’s ratable portion of the Revolving Borrowings denominated in Committed Alternative Currencies then outstanding (calculated based on its Revolving Commitment as a percentage of the aggregate Revolving Commitments outstanding after giving effect to the relevant Revolving Commitment Increase) over (ii) such Incremental Lender’s ratable portion of the Revolving Borrowings denominated in Committed Alternative Currencies then outstanding (calculated based on its Revolving Commitment (without giving effect to the relevant Revolving Commitment Increase) as a percentage of the aggregate Revolving Commitments (without giving effect to the relevant Revolving Commitment Increase), with payment in each such currency to be made ratably according to the outstanding Revolving Borrowings denominated in such Committed Alternative Currency. After the Administrative Agent’s receipt of such funds from each such Incremental Lender and each such New Lender, the Administrative Agent will promptly thereafter cause to be distributed like funds to the other Revolving Lenders for the account of their respective Applicable Lending Offices in an amount to each other Revolving Lender such that the aggregate amount of the outstanding Revolving Advances owing to each Revolving Lender in each currency after giving effect to such distribution equals such Revolving Lender’s ratable portion of the Revolving Borrowings in such currency then outstanding (calculated based on its Revolving Commitment as a percentage of the aggregate Revolving Commitments outstanding after giving effect to the relevant Revolving Commitment Increase).
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(vi)              Notwithstanding the foregoing, with respect to any Incremental Revolving Increase made at any time in which there are Revolving Advances outstanding in any Committed Alternative Currency (other than Canadian Dollars), all timing requirements set forth in this Section 2.04(d) shall be adjusted as reasonably agreed by the Administrative Agent and the Company in order to allow the reallocation described in Section 2.04(d)(v) in a timely manner.

(vii)              Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Increase Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitments evidenced thereby.  Any such amendment may be effected in writing by the Administrative Agent with the Company’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.

Section 2.05   Repayment .  (a)  Revolving Advances .  Each Borrower shall repay to the Administrative Agent for the ratable account of the applicable Lenders the principal amount of each Revolving Advance owing by such Borrower on the Revolving Termination Date in the currency of such Revolving Advance.

(b)              Initial Term Loans .  The Spinco Borrower shall repay to the Administrative Agent for the ratable account of the applicable Term Loan Lenders, on the last Business Day of each fiscal quarter ending after the Closing Date (commencing with the first full fiscal quarter after the Closing Date), a principal amount of the Initial Term Loans equal to (i) for each of the first eight full fiscal quarters ending after the Closing Date, 1.250%, (ii) for each of the next four full fiscal quarters, 1.875% and (iii) for each of the next seven full fiscal quarters, 2.500%, in each case of the aggregate outstanding principal amount of the Initial Term Loans as of the Closing Date.  If not sooner paid, the Initial Term Loans shall be paid in full, together with accrued interest thereon, on the applicable Termination Date.

(c)              Incremental Term Loans .  The applicable Borrower shall repay to the Administrative Agent for the ratable account of the applicable Term Loan Lenders the aggregate outstanding principal amount of each Incremental Term Loan (if any) as determined pursuant to, and in accordance with, Section 2.04(d) .

(d)              Obligations Unconditional .  The obligations of the Company under this Agreement, any Letter of Credit Agreement and any other agreement or instrument relating to any Letter of Credit shall be unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement, such Letter of Credit Agreement and such other agreement or instrument under all circumstances, including the following circumstances (it being understood that any such payment by the Company is without prejudice to, and does not constitute a waiver of, any rights the Company might have or might acquire as a result of the payment by any Lender of any draft or the reimbursement by the Company thereof):

(i)              any lack of validity or enforceability of this Agreement, any Note, any Letter of Credit Agreement, any Letter of Credit or any other agreement or instrument relating thereto (all of the foregoing being, collectively, the “ L/C Related Documents ”);

(ii)              any change in the time, manner or place of payment of, or in any other term of, all or any of the obligations of the Company in respect of any L/C Related Document or any other amendment or waiver of or any consent to departure from all or any of the L/C Related Documents;
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(iii)              the existence of any claim, set-off, defense or other right that the Company may have at any time against any beneficiary or any transferee of a Letter of Credit (or any Persons for which any such beneficiary or any such transferee may be acting), any Issuing Bank, the Administrative Agent, any Lender or any other Person, whether in connection with the transactions contemplated by the L/C Related Documents or any unrelated transaction;

(iv)              any statement or any other document presented under a Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;

(v)              payment by an Issuing Bank under a Letter of Credit against presentation of a draft or certificate that does not strictly comply with the terms of such Letter of Credit;

(vi)              any exchange, release or non-perfection of any collateral, or any release or amendment or waiver of or consent to departure from any guarantee, for all or any of the obligations of the Company in respect of the L/C Related Documents;

(vii)              any loss or delay in the transmission or otherwise of any document required in order to make a drawing under such Letter of Credit, except for errors, omissions, interruptions or delays resulting from the gross negligence or willful misconduct of such Issuing Bank or its employees;

(viii)              honor of a demand for payment presented electronically even if such Letter of Credit requires that demand be in the form of a draft;

(ix)              any payment made by the applicable Issuing Bank in respect of an otherwise complying item presented after the date specified as the expiration date of, or the date by which documents must be received under such Letter of Credit if presentation after such date is authorized by the Uniform Commercial Code, the ISP or the UCP, as applicable;

(x)              any payment made by the applicable Issuing Bank under such Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such Letter of Credit, including any arising in connection with any proceeding under any Debtor Relief Law; or

(xi)              any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including any other circumstance that might otherwise constitute a defense available to, or a discharge of, the Company or a guarantor.

The Company shall promptly examine a copy of each Letter of Credit and each amendment thereto that is delivered to it and, in the event of any claim of noncompliance with the Company’s instructions or other irregularity, the Company will immediately notify the applicable Issuing Bank.  The Company shall be conclusively deemed to have waived any such claim against the applicable Issuing Bank and its correspondents unless such notice is given as aforesaid

Section 2.06    Interest .  Each Borrower shall pay interest on the unpaid principal amount of each Revolving Advance and each Term Loan owing by it to each Lender from the date of such Revolving Advance or Term Loan until such principal amount shall be paid in full, at the following rates per annum:
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(a)              Base Rate Advances .  If such Revolving Advance or Term Loan is a Base Rate Advance, a rate per annum equal at all times to the sum of the Base Rate in effect from time to time, plus the Applicable Margin, payable in arrears on (A) the last day of each quarter and (B) the date such Base Rate Advance shall be paid in full; provided that any amount of principal which is not paid when due (whether at stated maturity, by acceleration or otherwise) shall bear interest, from the date on which such amount is due until such amount is paid in full, payable on demand, at a rate per annum equal at all times to 2.00% per annum above the Base Rate plus the Applicable Margin.

(b)              Eurodollar Rate Advances .  If such Revolving Advance or Term Loan is a Eurodollar Rate Advance, a rate per annum equal at all times during the Interest Period for such Revolving Advance or Term Loan to the sum of the Eurodollar Rate for such Interest Period, plus the Applicable Margin, payable in arrears on (A) if the Interest Period in respect of such Advance is less than or equal to three months, the last day of such Interest Period, or (B) if the Interest Period in respect of such Advance is greater than three months, the last day of each three-month period (beginning the first day of such Interest Period) occurring during that Interest Period, and also on the last day of such Interest Period; provided that any amount of principal which is not paid when due (whether at stated maturity, by acceleration or otherwise) shall bear interest, from the date on which such amount is due until such amount is paid in full, payable on demand, at a rate per annum equal at all times to 2.00% per annum above the Base Rate in effect from time to time plus the Applicable Margin.

Section 2.07   Additional Interest on Eurodollar Rate Advances .  Each Borrower shall pay to the Administrative Agent for the account of each Lender additional interest on the unpaid principal amount of each Eurodollar Rate Advance of such Lender made to such Borrower, from the date of such Revolving Advance or Term Loan until such principal amount is paid in full, at an interest rate per annum equal at all times to the remainder obtained by subtracting (i) the Eurodollar Rate for the Interest Period for such Revolving Advance or Term Loan from (ii) the rate obtained by dividing such Eurodollar Rate by a percentage equal to 100% minus the Eurodollar Rate Reserve Percentage of such Lender for such Interest Period, payable on each date on which interest is payable on such Revolving Advance or Term Loan.  Such additional interest shall be determined by such Lender and notified to the applicable Borrower and the Administrative Agent.  Each Lender notifying the applicable Borrower and the Administrative Agent of such additional interest shall provide the applicable Borrower (with a copy to the Administrative Agent), at the time of such notification, with reasonable details, including the basis for the calculation thereof, of such additional interest, provided that, in the absence of manifest error, the amount of such additional interest so notified shall be conclusive and binding upon such Borrower.

Section 2.08    Interest Rate Determination .  (a)  If the Eurodollar Rate cannot be determined by reference to the Reuters Screen LIBOR01 Page or any successor page (as provided in the definition of “Eurodollar Rate”) or by reference to an Interpolated Rate, each Reference Bank agrees to furnish to the Administrative Agent timely information for the purpose of determining each Eurodollar Rate.  Subject to Section 2.02(a)(ii)(B) , if any of the Reference Banks shall not furnish such timely information to the Administrative Agent for the purpose of determining any such interest rate, the Administrative Agent shall determine such interest rate on the basis of timely information furnished by the remaining Reference Bank.

(b)              The Administrative Agent shall give prompt notice to the applicable Borrower and the applicable Lenders of the applicable interest rate determined by the Administrative Agent for purposes of Section 2.06(a) or (b) , and the applicable rate, if any, furnished by each Reference Bank for the purpose of determining the applicable interest rate or, in the case of Section 2.02(d) , applicable Eurodollar Rate under Sections 2.02(d) or 2.06(b) .
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Section 2.09   Prepayments .  (a)  Optional Prepayments .  The Borrowers shall have the right to prepay any principal amount of any Term Loans or Revolving Advances (i) upon same-day notice in the case of Base Rate Advances or (ii) upon at least two Business Days’ notice in the case of Eurodollar Rate Advances, to the Administrative Agent stating the proposed date and aggregate principal amount of the prepayment, and if such notice is given, such Borrower shall prepay the outstanding principal amounts of the Term Loans or the Revolving Advances comprising part of the same Term Loan Borrowing or Revolving Borrowing in whole or ratably in part, together with accrued interest to the date of such prepayment on the principal amount prepaid; provided , however , that (i) each partial prepayment shall be in an aggregate principal amount not less than the Borrowing Minimum or the Borrowing Multiple in excess thereof and (ii) in the event of any such prepayment of a Eurodollar Rate Advance, the applicable Borrower shall be obligated to reimburse the Lenders in respect thereof pursuant to Section 10.04(b) .  Each prepayment of Term Loans shall be applied to reduce in direct order of maturity (or as otherwise directed by the Company) the remaining scheduled principal installments of such Term Loans.

(b)              Mandatory Prepayments .

(i)              [Reserved].

(ii)              On the date of any termination or reduction of Revolving Commitments pursuant to this Agreement, the applicable Borrower shall pay or prepay so much of the Advances as shall be necessary in order that the aggregate Usage will not exceed the aggregate Revolving Commitments, in each case after giving effect to such termination or reduction.

(iii)              [Reserved].

(iv)              If (A) the Usage shall exceed the aggregate Revolving Commitments, (B) the sum of (i) the US Dollar Equivalent of the total principal amount of Revolving Advances made by any Revolving Lender (in its capacity as a Revolving Lender) and outstanding at such time and (ii) the L/C Exposure of such Revolving Lender shall exceed such Revolving Lender’s Revolving Commitment or (C) the L/C Obligations of any Issuing Bank in respect of Letters of Credit issued by such Issuing Bank exceed such Issuing Bank’s Letter of Credit Commitment, the Company shall prepay such Revolving Advances or cash collateralize such Letters of Credit in the amount of such excess.

(v)              Each prepayment made pursuant to this Section 2.09 shall be made together with any interest accrued to the date of such prepayment on the principal amounts prepaid. The Administrative Agent shall give prompt notice of any prepayment required under Section 2.09(b)(ii) or (iv) to the Borrowers and the Lenders.

Section 2.10   Increased Costs .

(a)              Increased Costs Generally .  If any Change in Law shall:

(i)              subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto;
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(ii)              impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender (except any reserve requirements reflected in the Eurodollar Rate Reserve Percentage) or any Issuing Bank; or

(iii)              impose on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement, Eurodollar Rate Advances made by such Lender or any Letter of Credit or participation therein;

and the result of any of the foregoing shall be to increase the cost to such Lender, such Issuing Bank or such other Recipient of making, converting to, continuing or maintaining any Advance (or of maintaining its obligation to make any such Advance), or to increase the cost to such Lender, such Issuing Bank or such other Recipient of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender, any Issuing Bank or other Recipient hereunder (whether of principal, interest or any other amount) then, upon written request of such Lender, such Issuing Bank or other Recipient, the applicable Borrower shall promptly pay to any such Lender, such Issuing Bank or other Recipient, as the case may be, such additional amount or amounts as will compensate such Lender, such Issuing Bank or other Recipient, as the case may be, for such additional costs incurred or reduction suffered.

(b)              Capital Requirements .  If any Lender or any Issuing Bank determines that any Change in Law affecting such Lender or such Issuing Bank or any lending office of such Lender or such Lender’s or such Issuing Bank’s holding company, if any, regarding capital or liquidity requirements, has or would have the effect of reducing the rate of return on such Lender’s or such Issuing Bank’s capital or on the capital of such Lender’s or such Issuing Bank’s holding company, if any, as a consequence of this Agreement, the Commitment of such Lender or the Advances made by, or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by such Issuing Bank, to a level below that which such Lender or such Issuing Bank or such Lender’s or such Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or such Issuing Bank’s policies and the policies of such Lender’s or such Issuing Bank’s holding company with respect to capital adequacy), then from time to time upon written request of such Lender or such Issuing Bank the applicable Borrower shall promptly pay to such Lender or such Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or such Issuing Bank or such Lender’s or such Issuing Bank’s holding company for any such reduction suffered.

(c)              Additional Borrowers . If any Change in Law shall make it unlawful for any Lender or Issuing Bank to make, convert, continue, maintain, fund or charge interest with respect to any extension of credit to any Additional Borrower or to give effect to its obligations as contemplated by this Agreement with respect to any extension of credit to any Additional Borrower, then, upon written notice by such Lender or such Issuing Bank, as applicable (each such Lender or Issuing Bank providing such notice, an “ Impacted Lender ”), to the Company and the Administrative Agent:

(i)              the obligations of the Lenders or such Issuing Bank, as applicable, hereunder to make extensions of credit to such Additional Borrower shall forthwith be (x) suspended until each Impacted Lender notifies the Company and the Administrative Agent in writing that it is no longer unlawful for such Lender or Issuing Bank, as applicable, to issue, make, maintain, fund or charge interest with respect to any extension of credit to such Additional Borrower or (y) to the extent required by law, cancelled;
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(ii)              if it shall be unlawful for any Impacted Lender to maintain or charge interest with respect to any outstanding Advance to such Additional Borrower, such Additional Borrower shall repay (or at its option and to the extent permitted by law, assign to the Company) (x) all outstanding Base Rate Advances made to such Additional Borrower within three Business Days or such earlier period as required by law and (y) all outstanding Eurodollar Advances made to such Additional Borrower on the last day of the then current Interest Periods with respect to such Eurodollar Advance or within such earlier period as required by law; and

(iii)              if it shall be unlawful for any Impacted Lender to maintain, charge interest or hold any participation with respect to any Letter of Credit issued on behalf of such Additional Borrower, such Additional Borrower shall deposit in a cash collateral account opened by the Administrative Agent an amount equal to the L/C Obligations with respect to such Letters of Credit within three Business Days or within such earlier period as required by law.

(d)              Certificates for Reimbursement .  A certificate of a Lender, an Issuing Bank or such other Recipient setting forth the amount or amounts necessary to compensate such Lender, such Issuing Bank, such other Recipient or any of their respective holding companies, as the case may be, as specified in paragraph (a) or (b) of this Section and delivered to the Company, shall be conclusive absent manifest error.  The applicable Borrower shall pay such Lender, such Issuing Bank or such other Recipient, as the case may be, the amount shown as due on any such certificate within 10 days after receipt thereof.

(e)              Delay in Requests .  Failure or delay on the part of any Lender, any Issuing Bank or such other Recipient to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s, such Issuing Bank’s or such other Recipient’s right to demand such compensation; provided that the Borrowers shall not be required to compensate any Lender, any Issuing Bank or any other Recipient pursuant to this Section for any increased costs incurred or reductions suffered more than 270 days prior to the date that such Lender, such Issuing Bank or such other Recipient, as the case may be, notifies the Company of the Change in Law giving rise to such increased costs or reductions, and of such Lender’s, such Issuing Bank’s or such other Recipient’s intention to claim compensation therefor (except that if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereof).

(f)              Notwithstanding the foregoing provisions of this Section, a Lender shall not be entitled to compensation pursuant to this Section in respect of any Bid Advances if the Change in Law which would otherwise entitle it to such compensation shall have been publicly announced prior to submission of the Notice of Bid Borrowing pursuant to which such Advance was made.

Section 2.11   Payments and Computations .  (a)  Each Borrower shall make each payment required to be made by it hereunder and under the Notes, irrespective of any right of counterclaim or set-off, not later than 1:00 P.M. (New York City time) on the day when due to the Administrative Agent for the account of the applicable Lender, in the Administrative Agent’s Account, in US Dollars in same day funds; provided that payment of principal and interest on Advances denominated in Committed Alternative Currencies or other amounts required hereunder to be paid in Committed Alternative Currencies shall be made not later than 1:00 P.M. Local Time on the day when due to the Administrative Agent for the account of the applicable Lender, in the Administrative Agent’s Account, in the applicable Committed Alternative Currency in same day funds.  The Administrative Agent will promptly thereafter cause to be distributed like funds relating to the payment of principal or interest or fees ratably (other than amounts payable pursuant to Sections 2.02(d) , 2.07 , 2.10 , 2.14 or 10.04(b) ) to the Lenders entitled thereto for the account of their respective Applicable Lending Offices, and like funds relating to the payment of any other amount payable to any Lender to such Lender for the account of its Applicable Lending Office, in each case to be applied in accordance with the terms of this Agreement.  Upon its acceptance of an Assignment and Assumption and recording of the information contained therein in the Register pursuant to Section 9.02 , from and after the effective date specified in each Assignment and Assumption, the Administrative Agent shall make all payments hereunder and under the Notes in respect of the interest assigned thereby to the Lender assignee thereunder, and the parties to such Assignment and Assumption shall make all appropriate adjustments in such payments for periods prior to such effective date directly between themselves.
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(b)              All computations of interest with respect to the Advances based on clause (a) of the definition of Base Rate and of fees (other than the commitment fee) shall be made by the Administrative Agent on the basis of a year of 365 or 366 days, as the case may be, and all computations of (i) interest with respect to the Bid Advances, (ii) interest with respect to the Term Loans or Revolving Advances based on clause (b) of the definition of Base Rate, the Eurodollar Rate or the Federal Funds Rate, (iii) letter of credit commissions, (iv) the commitment fee and (v) interest pursuant to Section 2.07 shall be made by the Administrative Agent on the basis of a year of 360 days, in each case for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest, fee or commission is payable.  Each determination by the Administrative Agent (or, in the case of Section 2.07 , by a Lender) of an interest rate hereunder shall be conclusive and binding for all purposes, absent manifest error.

(c)              Whenever any payment hereunder or under the Notes shall be stated to be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day, and such extension of time shall in such case be included in the computation of payment of interest and fees, as the case may be; provided , however , if such extension would cause payment of interest on or principal of Eurodollar Rate Advances to be made in the next following calendar month, such payment shall be made on the next preceding Business Day.

(d)              Unless the Administrative Agent shall have received notice from the applicable Borrower prior to the date on which any payment is due to the Lenders hereunder that such Borrower will not make such payment in full, the Administrative Agent may assume that such Borrower has made such payment in full to the Administrative Agent on such date and the Administrative Agent may, in reliance upon such assumption, cause to be distributed to each Lender or the applicable Issuing Bank, as the case may be, on such due date an amount equal to the amount then due such Lender or such Issuing Bank, as the case may be.  If and to the extent the applicable Borrower shall not have so made such payment in full to the Administrative Agent, each Lender or the applicable Issuing Bank, as the case may be, shall repay to the Administrative Agent forthwith on demand such amount distributed to such Lender or such Issuing Bank, as the case may be, together with interest thereon, for each day from the date such amount is distributed to such Lender or such Issuing Bank, as the case may be, until the date such Lender or such Issuing Bank, as the case may be, repays such amount to the Administrative Agent, in the case of payments made in US Dollars at the Federal Funds Rate, in the case of payments made in Canadian Dollars, at the Canadian Interbank Rate and in the case of payments made in any other currency, at a rate determined by the Administrative Agent in accordance with banking rules on interbank compensation in the relevant currency.

(e)              For the purposes of the Interest Act (Canada) and disclosure under such act, whenever any interest or fees to be paid under this Agreement are to be calculated on the basis of a year of 365 days or 360 days or any other period of time that is less than a calendar year, the yearly rate of interest to which the rate determined pursuant to such calculation is equivalent is the rate so determined multiplied by the actual number of days in the calendar year in which the same is to be ascertained and divided by either 365, 360 or such other period of time, as the case may be.
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(f)              Notwithstanding any provision of this Agreement, in no event shall the aggregate “interest” (as defined in section 347 of the Criminal Code (Canada)) payable under this Agreement exceed the effective annual rate of interest on the “credit advanced” (as defined in that section) under this Agreement lawfully permitted by that section and, if any payment, collection or demand pursuant to this Agreement in respect of “interest” (as defined in that section) is determined to be contrary to the provisions of that section, such payment, collection or demand shall be deemed to have been made by mutual mistake of the Borrowers, the Administrative Agent and the Lenders and the amount of such payment or collection shall be refunded to the applicable Borrower.  For the purposes of this Agreement, the effective annual rate of interest shall be determined in accordance with generally accepted actuarial practices and principles over the relevant term and, in the event of dispute, a certificate of a Fellow of the Canadian Institute of Actuaries appointed by the Administrative Agent will be prima facie evidence of such rate.

Section 2.12   Evidence of Indebtedness .  (a)  Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of each Borrower to such Lender resulting from each Revolving Advance or Term Loan owing to such Lender from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder in respect of Revolving Advances or Term Loans.  Each Borrower agrees that upon notice by any Lender to such Borrower (with a copy of such notice to the Administrative Agent) to the effect that a Revolving Note or Term Loan Note is required or appropriate in order for such Lender to evidence (whether for purposes of pledge, enforcement or otherwise) the Revolving Advances or Term Loans owing to, or to be made by, such Lender, such Borrower shall promptly execute and deliver to such Lender a Revolving Note or Term Loan Note, as applicable, payable to such Lender and its registered assigns, which Revolving Note shall be (i) in the case of the Company, in a principal amount up to the Revolving Commitment of such Lender, (ii) in the case of the Spinco Borrower, in a principal amount up to the Revolving Commitment and (iii) in the case of the Canadian Borrower, in a principal amount up to the Revolving Commitment of such Lender, and which Term Loan Note shall be in a principal amount up to the Term Loan Commitment (or outstanding Term Loan) of such Lender.

(b)              The Register maintained by the Administrative Agent pursuant to Section 9.02 shall include a control account, and a subsidiary account for each Lender, in which accounts (taken together) shall be recorded (i) the date and amount of each Borrowing made hereunder, the Type of Advances comprising such Borrowing and, if appropriate, the Interest Period applicable thereto, (ii) the terms of each Assignment and Assumption delivered to and accepted by it, (iii) the amount of any principal or interest due and payable or to become due and payable from each Borrower to each Lender hereunder and (iv) the amount of any sum received by the Administrative Agent from each Borrower hereunder and each Lender’s share thereof.

(c)              Entries made in good faith by the Administrative Agent in the Register pursuant to subsection (b) above, and by each Lender in its account or accounts pursuant to subsection (a) above, shall be prima   facie evidence of the amount of principal and interest due and payable or to become due and payable from the Borrowers to, in the case of the Register, each Lender and, in the case of such account or accounts, such Lender, under this Agreement, absent manifest error; provided , however , that the failure of the Administrative Agent or such Lender to make an entry, or any finding that an entry is incorrect, in the Register or such account or accounts shall not limit or otherwise affect the obligations of the Borrowers under this Agreement.

Section 2.13   Sharing of Payments, Etc.   If any Revolving Lender or Term Loan Lender shall obtain any payment (whether voluntary, involuntary, through the exercise of any right of set-off, or otherwise) on account of the Term Loans or Revolving Advances owing by the Borrowers to it (other than pursuant to Sections 2.04(b) , 2.04(c) , 2.07 , 2.10 , 2.14 or 2. 17(b) ) in excess of its ratable share of payments on account of the Term Loans or Revolving Advances made to the Borrowers obtained by all the Lenders, such Lender shall notify the Administrative Agent of such fact and forthwith purchase (for cash at face value) from the other Lenders such participations in the Term Loans or Revolving Advances made to the Borrowers owing to them as shall be necessary to cause such purchasing Lender to share the excess payment ratably with each of them, provided , however , that (i) if all or any portion of such excess payment is thereafter recovered from such purchasing Term Loan Lender or Revolving Lender, such purchase from each Term Loan Lender or Revolving Lender shall be rescinded and such Term Loan Lender or Revolving Lender shall repay to the purchasing Term Loan Lender or Revolving Lender the purchase price to the extent of such recovery together with an amount equal to such Term Loan Lender or Revolving Lender’s ratable share (according to the proportion of (A) the amount of such Term Loan Lender or Revolving Lender’s required repayment to (B) the total amount so recovered from the purchasing Lender) of any interest or other amount paid or payable by the purchasing Term Loan Lender or Revolving Lender in respect of the total amount so recovered and (ii) the provisions of this paragraph shall not be construed to apply to (x) any payment made by a Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender), (y) the application of Cash Collateral provided for in Section 2.19 or (z) any payment obtained by a Term Loan Lender or Revolving Lender as consideration for the assignment of or sale of a participation in any of its Term Loans or Revolving Advances or participations and Letters of Credit to any assignee or participant, other than to the Borrowers or any of their respective Subsidiaries (as to which the provisions of this paragraph shall apply).  The Borrowers agree that any Term Loan Lender or Revolving Lender so purchasing a participation from another Term Loan Lender or Revolving Lender pursuant to this Section 2.13 may, to the fullest extent permitted by law, exercise all its rights of payment, set-off and counterclaim with respect to such participation as fully as if such Term Loan Lender or Revolving Lender were the direct creditor of the applicable Borrower in the amount of such participation.
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Section 2.14   Taxes .

(a)              Issuing Bank .  For purposes of this Section 2.14 , the term “Lender” includes any Issuing Bank.

(b)              Payments Free of Taxes .  Any and all payments by or on account of any obligation of the Borrowers under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by applicable law.  If any applicable law (as determined in the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by the Borrowers shall be increased as necessary so that, after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section), the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.

(c)              Payment of Other Taxes by the Company .  The Company shall timely pay to the relevant Governmental Authority in accordance with applicable law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes.

(d)              Indemnification by the Company .  The Company shall indemnify each Recipient, within 30 days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.  A certificate as to the amount of such payment or liability delivered to the Company by a Recipient (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Recipient, shall be conclusive absent manifest error.
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(e)              Indemnification by the Lenders .  Each Lender shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that the Borrowers have not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Borrowers   to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 9.03 relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.  A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error.  Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this paragraph (e).

(f)              Evidence of Payments .  Within 30 days after any payment of Taxes by the Borrowers to a Governmental Authority pursuant to this Section 2.14 , the applicable Borrower shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.

(g)              Status of Lenders.

(i)              Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the applicable Borrower and the Administrative Agent, at the time or times reasonably requested by the applicable Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the applicable Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding.  In addition, any Lender, if reasonably requested by the applicable Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the applicable Borrower or the Administrative Agent as will enable the applicable Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements.  Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 2.14(g)(ii)(A) , (ii)(B) and (ii)(D) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.

(ii)              Without limiting the generality of the foregoing, in the event that a Borrower is a US Person:

(A)              Any Lender that is a US Person shall deliver to such Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Company or the Administrative Agent), executed originals of IRS Form W-9 certifying that such Lender is exempt from United States federal backup withholding tax;
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(B)              any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to such Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of such Borrower or the Administrative Agent), whichever of the following is applicable:

(1)              in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN or W-8BEN-E, as applicable, establishing an exemption from, or reduction of, United States federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN or W-8BEN-E, as applicable, establishing an exemption from, or reduction of, United States federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;

(2)              executed originals of IRS Form W-8ECI;

(3)              in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit E-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10-percent shareholder” of the Borrowers within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “ US Tax Compliance Certificate ”) and (y) executed originals of IRS Form W-8BEN or W-8BEN-E, as applicable; or

(4)              to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or W-8BEN-E, as applicable, a U.S. Tax Compliance Certificate substantially in the form of Exhibit E-2 or Exhibit E-3 , IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit E-4 on behalf of each such direct and indirect partner;

(C)              any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Company and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Company or the Administrative Agent), executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in United States federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Company or the Administrative Agent to determine the withholding or deduction required to be made; and
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(D)              if a payment made to a Lender under any Loan Document would be subject to United States federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the applicable Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Company or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Company or the Administrative Agent as may be necessary for such Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment.  Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the applicable Borrower and the Administrative Agent in writing of its legal inability to do so.

(h)              Treatment of Certain Refunds .  If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 2.14 (including by the payment of additional amounts pursuant to this Section 2.14 ), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund).  Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this paragraph (h) ( plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority.  Notwithstanding anything to the contrary in this paragraph (h), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (h) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the indemnification payments or additional amounts giving rise to such refund had never been paid.  This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.

(i)              Survival .  Each party’s obligations under this Section 2.14 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.

Section 2.15   Interest Elections .  (a)  Each Term Loan Borrowing or Revolving Borrowing initially shall be of the Type specified in the applicable Notice of Borrowing and, in the case of a Eurodollar Rate Advance, shall have an initial Interest Period as specified in such Notice of Borrowing, provided , that each Revolving Advance made as a result of a drawing under a Letter of Credit shall be a Base Rate Advance unless and until each Revolving Lender shall have acquired participations equal to such Lender’s Pro Rata Share of the amount drawn under such Letter of Credit pursuant to Section 2.02(b)(ii) (after which time the Company shall be entitled, pursuant to the immediately succeeding sentence, to convert any such Base Rate Advance to a Eurodollar Rate Advance).  Thereafter, the applicable Borrower may elect to convert such Term Loan Borrowing or Revolving Borrowing to a different Type of Term Loan or Revolving Advance denominated in the same currency or to continue such Term Loan Borrowing or Revolving Borrowing and, in the case of a Eurodollar Rate Advance, may elect Interest Periods therefor, all as provided in this Section.  The applicable Borrower may elect different options with respect to different portions of the affected Term Loan Borrowing or Revolving Borrowing, in which case each such Term Loan Borrowing or Revolving Borrowing shall be allocated ratably among the Lenders having made the Advances comprising such Term Loan Borrowing or Revolving Borrowing, and the Advances comprising each such portion shall be considered a separate Term Loan Borrowing or Revolving Borrowing.  This Section shall not apply to Bid Borrowings, which may not be converted or continued.
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(b)              To make an election pursuant to this Section, the applicable Borrower shall notify the Administrative Agent of such election by telephone by the time that a Notice of Borrowing would be required under Section 2.02 if such Borrower were requesting a Term Loan Borrowing or Revolving Borrowing of the Type resulting from such election to be made on the effective date of such election.  Each such telephonic Interest Election Request shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy to the Administrative Agent of a written Interest Election Request signed by the applicable Borrower.

(c)              Each telephonic and written Interest Election Request shall specify the following information in compliance with Section 2.02 :

(i)              the Term Loan Borrowing or Revolving Borrowing to which such Interest Election Request applies and, if different options are being elected with respect to different portions thereof, the portions thereof to be allocated to each resulting Term Loan Borrowing or Revolving Borrowing (in which case the information to be specified pursuant to clauses (iii) and (iv) below shall be specified for each resulting Term Loan Borrowing or Revolving Borrowing);

(ii)              the effective date of the election made pursuant to such Interest Election Request, which shall be a Business Day;

(iii)              the Type of Advances comprising such Term Loan Borrowing or Revolving Borrowing; and

(iv)              in the case of a Eurodollar Rate Advance, the Interest Period for each such Advance.

If any such Interest Election Request requests a Eurodollar Rate Advance but does not specify an Interest Period, the applicable Borrower shall be deemed to have selected an Interest Period of one month’s duration.

(d)              If a Borrower fails to deliver a timely Interest Election Request with respect to a Term Loan Borrowing or Revolving Borrowing prior to the end of the Interest Period applicable thereto, then, unless such Term Loan Borrowing or Revolving Borrowing is repaid as provided herein, (i) with respect to any such Term Loan Borrowing or Revolving Borrowing denominated in US Dollars, at the end of such Interest Period such Term Loan Borrowing or Revolving Borrowing shall be continued as or converted to a Base Rate Advance and (ii) with respect to any such Revolving Borrowing denominated in a Committed Alternative Currency, at the end of such Interest Period such Revolving Borrowing shall be continued as a Eurodollar Rate Advance with a one-month Interest Period.
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(e)              If, after the occurrence and during the continuance of any Event of Default, the Majority Lenders so direct, (i) each Eurodollar Rate Advance denominated in US Dollars will automatically, on the last day of the then existing Interest Period therefor, be converted into Base Rate Advances, (ii) with respect to Advances denominated in US Dollars, the obligation of the Lenders to make, or to convert Advances into, Eurodollar Rate Advances shall be suspended and (iii) each Advance denominated in a Committed Alternative Currency shall be made, or continued, as a Eurodollar Rate Advance with an Interest Period of no more than one month.

Section 2.16   [Reserved] .

Section 2.17   Mitigation Obligations; Replacement of Lenders .

(a)              Designation of a Different Lending Office .  If any Lender requests compensation under Section 2.10 , or requires the Borrowers to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.14 , then such Lender shall use reasonable efforts to designate a different lending office for funding or booking its Advances hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.10 or Section 2.14 , as the case may be, in the future and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender.  The Company hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.

(b)              Replacement of Lenders .  If any Lender requests compensation under Section 2.10 , or if the Borrowers are required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.14 , and, in each case, such Lender has not designated a different lending office in accordance with Section 2.17(a) , or if any Lender is a Defaulting Lender or a Non-Consenting Lender, or if any Revolving Lender cannot make Advances to, or participate in Letters of Credit for the account of, any proposed Additional Borrower as a result of such Lender’s organizational policies or applicable law, then the Company may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 9.02 ), all of its interests, rights (other than its existing rights to payments pursuant to Section 2.10 or Section 2.14 ) and obligations under this Agreement and the related Loan Documents to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if such Lender accepts such assignment); provided that:

(i)              the Company shall have paid to the Administrative Agent the assignment fee (if any) specified in Section 9.02 ;

(ii)              such Lender shall have received payment of an amount equal to the outstanding principal of its Advances and participations in Letters of Credit, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section 2.02(a)(iii ) or (d)(i)(F) , as applicable) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the applicable Borrower (in the case of all other amounts);

(iii)              in the case of any such assignment resulting from a claim for compensation under Section 2.10 or payments required to be made pursuant to Section 2.14 , such assignment will result in a reduction in such compensation or payments thereafter;
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(iv)              such assignment does not conflict with applicable law;

(v)              in the case of any assignment resulting from a Lender becoming a Non-Consenting Lender, the applicable assignee shall have consented to the applicable amendment, waiver or consent; and

(vi)              in the case of any assignment resulting from a Lender being unable to make Advances to, or participate in Letters of Credit issued for the account of, a proposed Additional Borrower, the applicable assignee is not so restricted.

A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Company to require such assignment and delegation cease to apply. Each party hereto agrees that an assignment required pursuant to this Section 2.17(b) may be effected pursuant to an Assignment and Assumption executed by the Company, the Administrative Agent and the assignee, and that the Lender required to make such assignment need not be a party thereto in order for such assignment to be effective.

Section 2.18     Cash Collateral .  At any time that there shall exist a Defaulting Lender, within one Business Day following the written request of the Administrative Agent or an Issuing Bank (with a copy to the Administrative Agent), the Company shall Cash Collateralize the Fronting Exposure of the applicable Issuing Bank with respect to such Defaulting Lender (determined after giving effect to Section 2.19(a)(iv) and any Cash Collateral provided by such Defaulting Lender) in an amount not less than 100% of such Fronting Exposure.

(a)              Grant of Security Interest .  The Company, and to the extent provided by any Defaulting Lender, such Defaulting Lender, hereby grants to the Administrative Agent, for the benefit of the Issuing Banks, and agrees to maintain, a first priority security interest in all such Cash Collateral as security for the Defaulting Lender’s obligation to fund participations in respect of L/C Obligations, to be applied pursuant to subsection (b) below.  If at any time the Administrative Agent determines that Cash Collateral is subject to any right or claim of any Person other than the Administrative Agent and the Issuing Banks as herein provided, or that the total amount of such Cash Collateral is less than 100% of such Fronting Exposure, the Company will, promptly upon demand by the Administrative Agent, pay or provide to the Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency (after giving effect to any Cash Collateral provided by the Defaulting Lender).

(b)              Application .  Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided under this Section 2.18 or Section 2.19 in respect of Letters of Credit shall be applied to the satisfaction of the Defaulting Lender’s obligation to fund participations in respect of L/C Obligations (including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) for which the Cash Collateral was so provided, prior to any other application of such property as may otherwise be provided for herein.

(c)              Termination of Requirement .  Cash Collateral (or the appropriate portion thereof) provided to reduce the Fronting Exposure of an Issuing Bank shall no longer be required to be held as Cash Collateral pursuant to this Section 2.18 following (i) the elimination of the applicable Fronting Exposure (including by the termination of Defaulting Lender status of the applicable Lender), or (ii) the determination by the Administrative Agent and the applicable Issuing Bank that there exists excess Cash Collateral; provided that, subject to Section 2.19 , the Person providing Cash Collateral and the applicable Issuing Bank may agree that Cash Collateral shall be held to support future anticipated Fronting Exposure or other obligations.
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Section 2.19   Defaulting Lenders .

(a)              Defaulting Lender Adjustments .  Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable law:

(i)              Waivers and Amendments .  Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the definition of Majority Facility Lenders, Majority Lenders and Section 10.01 .

(ii)              Defaulting Lender Waterfall .  Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VI or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.05 shall be applied at such time or times as may be determined by the Administrative Agent as follows: first , to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second , to the payment on a pro   rata basis of any amounts owing by such Defaulting Lender to the Issuing Banks; third , to Cash Collateralize the Fronting Exposure of the Issuing Banks with respect to such Defaulting Lender in accordance with Section 2.18 ; fourth , as each Borrower may request (so long as no Default or Event of Default exists), to the funding of any Advance or funded participation in any Letter of Credit in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth , if so determined by the Administrative Agent and the applicable Borrower, to be held in a deposit account and released pro   rata in order to (A) satisfy such Defaulting Lender’s potential future funding obligations with respect to Advances and funded participations in Letters of Credit under this Agreement and (B) Cash Collateralize any Issuing Bank’s future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in accordance with Section 2.18 ; sixth , to the payment of any amounts owing to the Lenders or the Issuing Banks as a result of any judgment of a court of competent jurisdiction obtained by any Lender or the Issuing Banks against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh , so long as no Default or Event of Default exists, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth , to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (1) such payment is a payment of the principal amount of any Advances or funded participations in Letters of Credit in respect of which such Defaulting Lender has not fully funded its appropriate share, and (2) such Advances were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 3.02 were satisfied or waived, such payment shall be applied solely to pay the Advances of, and funded participations in Letters of Credit owed to, all Non-Defaulting Lenders on a pro   rata basis prior to being applied to the payment of any Advances of, or funded participations in Letters of Credit owed to, such Defaulting Lender until such time as all Advances and funded and unfunded participations in L/C Obligations are held by the Lenders pro   rata in accordance with the Revolving Commitments without giving effect to Section 2.19(a)(iv) .  Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section 2.19(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
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(iii)              Certain Fees .

(A)              No Defaulting Lender shall be entitled to receive any commitment fee for any period during which that Lender is a Defaulting Lender (and the Borrowers shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender).

(B)              Each Defaulting Lender shall be entitled to receive letter of credit commissions pursuant to Section 2.03(b)(i) for any period during which that Lender is a Defaulting Lender only to the extent allocable to its Pro Rata Share of the stated amount of Letters of Credit for which it has provided Cash Collateral pursuant to Section 2.19 .

(C)              With respect to any commitment fee or letter of credit commission not required to be paid to any Defaulting Lender pursuant to clause (A) or (B) above, the applicable Borrower shall (1) pay to each Non-Defaulting Lender that portion of any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lender’s participation in L/C Obligations that has been reallocated to such Non-Defaulting Lender pursuant to clause (iv) below, (2) pay to each Issuing Bank, as applicable, the amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to such Issuing Bank’s Fronting Exposure to such Defaulting Lender, and (3) not be required to pay the remaining amount of any such fee.

(iv)              Reallocation of Participations to Reduce Fronting Exposure .  All or any part of such Defaulting Lender’s participation in L/C Obligations shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Shares of the L/C Obligations (calculated without regard to such Defaulting Lender’s Pro Rata Share of the L/C Obligations) but only to the extent that (x) the conditions set forth in Section 3.02 are satisfied at the time of such reallocation (and, unless the Company shall have otherwise notified the Administrative Agent at such time, the Company shall be deemed to have represented and warranted that such conditions are satisfied at such time), and (y) such reallocation does not cause (1) the sum of (A) the US Dollar Equivalent of the Revolving Advances of any Non-Defaulting Lender and (B) the L/C Exposure of such Non-Defaulting Lender (calculated giving effect to the reallocation pursuant to this Section 2.19(a)(iv) ) to exceed such Non-Defaulting Lender’s Revolving Commitment or (2) the sum of (A) the US Dollar Equivalent of the Revolving Advances of the Non-Defaulting Lenders (other than Revolving Advances made by the Issuing Banks pursuant to Section 2.02(b)(iii) which have not then been reimbursed), (B) the Bid Advances of the Non-Defaulting Lenders and (C) the aggregate L/C Exposure of the Non-Defaulting Lenders (calculated after giving effect to the reallocation pursuant to this Section 2.19(a)(iv) ) to exceed the Non-Defaulting Lenders’ Revolving Commitments.  No reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation.

(v)              Cash Collateral .  If the reallocation described in clause (iv) above cannot, or can only partially, be effected, the Company shall, without prejudice to any right or remedy available to it hereunder or under law, Cash Collateralize the applicable Issuing Bank’s Fronting Exposure in accordance with the procedures set forth in Section 2.18 .

(b)              Defaulting Lender Cure .  If the applicable Borrower, the Administrative Agent and the applicable Issuing Bank agree in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral), such Lender will, to the extent applicable, purchase at par that portion of outstanding Advances of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Advances and funded and unfunded participations in Letters of Credit to be held pro   rata by the Lenders in accordance with the Revolving Commitments (without giving effect to Section 2.19(a)(iv)) , whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of such Borrower while that Lender was a Defaulting Lender; and provided , further , that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
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(c)              New Letters of Credit .  So long as any Lender is a Defaulting Lender, no Issuing Bank shall be required to issue, extend, renew or increase any Letter of Credit unless it is satisfied that it will have no Fronting Exposure after giving effect thereto.

ARTICLE III

CONDITIONS OF LENDING

Section 3.01   [Reserved]

Section 3.02   Conditions Precedent to Each Borrowing Increasing the Aggregate Amount of Advances and each Letter of Credit Issuance .  The obligation of each Lender to make a Revolving Advance or Term Loan on the occasion of each Revolving Borrowing or Term Loan (other than any Advances made on the Closing Date) which would increase the aggregate outstanding amount of Term Loans or Revolving Advances owing by a Borrower to such Lender over the aggregate outstanding amount of Term Loans or Revolving Advances owing by such Borrower to such Lender immediately prior to the making of such Term Loan or Revolving Advance, and the obligation of each Issuing Bank to issue a Letter of Credit (other than any Letters of Credit issued (or deemed issued hereunder) on the Closing Date), shall be subject to the further conditions precedent that on the date of such Term Loan, Revolving Borrowing or issuance the following statements shall be true (and each of the giving of the applicable Notice of Borrowing, Notice of Issuance and the acceptance by the applicable Borrower of the proceeds of such Term Loan, of such Revolving Borrowing or of such Letter of Credit (other than in respect of Advances made or Letters of Credit issued (or deemed issued hereunder) on the Closing Date) shall constitute a representation and warranty by such Borrower that on the date of such Term Loan, Revolving Borrowing or issuance such statements are true):

(a)              the representations and warranties contained in this Agreement (other than, at any time that the Company has an Investment Grade Rating, Section 4.01(e)(iv)) are correct in all material respects (or in all respects if qualified by materiality) on and as of the date of such Term Loan, Revolving Borrowing or Letter of Credit issuance, before and after giving effect to such Term Loan, Revolving Borrowing or issuance and to the application of the proceeds therefrom, as though made on and as of such date, and

(b)              no event has occurred and is continuing, or would result from such Term Loan Borrowing or Revolving Borrowing, such issuance or from the application of the proceeds therefrom, which constitutes an Event of Default or which would constitute an Event of Default but for the requirement that notice be given or time elapse or both.
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Section 3.03   Conditions Precedent to Each Bid Borrowing .  The obligation of each Lender which is to make a Bid Advance on the occasion of a Bid Borrowing (including the initial Bid Borrowing) to make such Bid Advance as part of such Bid Borrowing is subject to the conditions precedent that (a) the Administrative Agent shall have received the written confirmatory Notice of Bid Borrowing with respect thereto, (b) on or before the date of such Bid Borrowing, but prior to such Bid Borrowing, the Administrative Agent shall have received a Bid Note payable to such Lender and its registered assigns for each of the one or more Bid Advances to be made by such Lender as part of such Bid Borrowing, in a principal amount equal to the principal amount of the Bid Advance to be evidenced thereby and otherwise on such terms as were agreed to for such Bid Advance in accordance with Section 2.02(d) , and (c) on the date of such Bid Borrowing the following statements shall be true (and each of the giving of the applicable Notice of Bid Borrowing and the acceptance by the Company of the proceeds of such Bid Borrowing shall constitute a representation and warranty by the Company that on the date of such Bid Borrowing such statements are true):

(a)              The representations and warranties contained in this Agreement (other than, at any time that the Company has an Investment Grade Rating, Section 4.01(e)(iv)) are correct in all material respects (or in all respects if qualified by materiality) on and as of the date of such Bid Borrowing, before and after giving effect to such Bid Borrowing and to the application of the proceeds therefrom, as though made on and as of such date.

(b)              No event has occurred and is continuing, or would result from such Bid Borrowing or from the application of the proceeds therefrom, which constitutes an Event of Default or which would constitute an Event of Default but for the requirement that notice be given or time elapse or both.

ARTICLE IV

REPRESENTATIONS AND WARRANTIES

Section 4.01   Representations and Warranties of the Company .  As of each date provided for in Article III, the Company represents and warrants as follows:

(a)              Each Borrower is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation indicated at the beginning of this Agreement, has all requisite corporate power and authority to conduct its business, to own its properties and assets as it is now conducted and as proposed to be conducted and is qualified or licensed to do business as a foreign corporation in good standing in all jurisdictions in which the conduct of its business requires it to so qualify or be licensed except where the failure to do so, individually or in the aggregate, could not reasonably be expected to materially and adversely affect the ability of such Borrower to perform its obligations under any Loan Document.

(b)              The execution, delivery and performance by each Borrower of the Loan Documents to which it is a party, including such Borrower’s use of the proceeds hereof, are (i) within such Borrower’s corporate powers, have been duly authorized by all necessary corporate action, and (ii) do not (x) contravene such Borrower’s charter, articles or by-laws or (y) contravene law (including Regulations T, U and X issued by the Board of Governors of the Federal Reserve Board) or any material contractual restriction binding on or affecting such Borrower or (z) result in or require the creation or imposition of any Lien upon or with respect to any of the properties of the Company or any of its Subsidiaries.
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(c)              No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority or regulatory body is required for the consummation of the Acquisition or due execution, delivery and performance by the Borrowers of any Loan Documents, except (i) for authorization, approvals, notices or filings that have been obtained or made and are in full force and effect or (ii) where the failure to obtain such authorization or approval or give such notice or make such filing would not reasonably be expected to have a material adverse effect on the business, financial condition or results of operations of the Company and its Subsidiaries taken as a whole.

(d)              This Agreement is, and each of other Loan Documents to which it is a party, when delivered hereunder will be, the legal, valid and binding obligation of each Borrower party thereto, enforceable against such Borrower in accordance with their respective terms.

(e)              (i)  The consolidated balance sheet of the Company and its Subsidiaries as at December 31, 2014, and the related consolidated statements of income, stockholders’ equity and cash flows of the Company and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of KPMG LLP, independent public accountants, fairly present the consolidated financial condition of the Company and its Subsidiaries as at such date and the consolidated results of the operations of the Company and its Subsidiaries for the period ended on such date, all in accordance with GAAP.  Each consolidated balance sheet of the Company and its Subsidiaries delivered pursuant to Section 3.01(g)(ii) of the Olin Credit Agreement, and the related consolidated statements of income, stockholders’ and cash flows of the Company and its Subsidiaries, fairly present the consolidated financial condition of the Company and its Subsidiaries as at the date applicable thereto and the consolidated results of the operations of the Company and its Subsidiaries for the period applicable thereto, all in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes.

(ii)              The consolidated balance sheet of DCP as at December 31, 2014, and the related consolidated statements of income, stockholders’ equity and cash flows of DCP for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, independent public accountants, fairly present the consolidated financial condition of DCP as at such date and the consolidated results of the operations of DCP for the period ended on such date, all in accordance with GAAP.  Each consolidated balance sheet of the Business delivered pursuant to Section 3.01(h)(ii) of the Olin Credit Agreement, and the related consolidated statements of income, stockholders’ equity and cash flows of the Business, fairly present the consolidated financial condition of the Business as at the date applicable thereto and the consolidated results of the operations of the Business for the period applicable thereto, all in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes.

(iii)              The Pro Forma Financial Statements have been prepared giving effect to the Transaction and the other transactions contemplated hereby to be consummated on the Closing Date as if the Transactions and such other transactions had occurred as of such date (in the case of the balance sheet) or at the beginning of such period (in the case of the income statements). The Pro Forma Financial Statements have been prepared in good faith and upon assumptions that are believed by the Company to be reasonable at the time made.

(iv)              Except as publicly disclosed prior to the Effective Date, since December 31, 2014, there has been no material adverse change in the business, financial condition or results of operations of the Company and its Subsidiaries, taken as a whole.

(f)              There are no actions, suits or proceedings pending or, to the knowledge of the Company, threatened, against the Company or any Subsidiary the reasonably anticipated outcome of which (i) would materially and adversely affect the ability of any Borrower to perform its obligations under the Loan Documents or (ii) purport to affect the legality, validity or enforceability of any Loan Document.
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(g)              No Borrower is engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Advance will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock, except in compliance with Regulations T, U and X issued by the Board of Governors of the Federal Reserve Board.

(h)              Neither the Company nor any Subsidiary is an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940.

(i)              The Company and each Subsidiary have filed all material Tax returns (federal, state, provincial and local) required to be filed and paid all taxes shown thereon to be due, including interest and penalties, or provided adequate reserves for payment thereof.

(j)              In the ordinary course of its business, the Company conducts an ongoing review of the effect of Environmental Laws on the operations and properties of the Company, in the course of which it identifies and evaluates associated liabilities and costs (including any capital or operating expenditures required for clean-up or closure of properties presently or previously owned, any liabilities in connection with off-site disposal of Hazardous Substances and any capital or operating expenditures) required to achieve or maintain compliance with Environmental Laws.  On the basis of this review, the Company has reasonably concluded that, except with respect to any matter disclosed in Items 1 or 3 in the Company’s 2014 Form 10-K or in the Commitments and Contingencies Note to the consolidated financial statements incorporated therein, such associated liabilities and costs are unlikely to cause a material adverse change in the business, financial condition or results of operations of the Company and its Subsidiaries, taken as a whole, from that shown on the consolidated financial statements as at, and for the fiscal year ended, December 31, 2014, provided that the inclusion of such exception does not indicate that any such matter will cause such a material adverse change.

(k)              (i) Neither the Company nor any Subsidiary nor, to the knowledge of the Company, any director, officer, employee, agent, or Affiliate of the Company or any of its Subsidiaries, (x) is currently the subject of any economic or financial sanctions or trade embargoes imposed, administered or enforced by the U.S. government (including those administered by the Office of Foreign Assets Control of the U.S. Treasury Department or the U.S. Department of State), the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions authority (collectively, “ Sanctions ”), (y) is located, operating, organized or residing in any country or territory that is the subject or target of Sanctions (as of the Effective Date, the Crimea region of Ukraine, Cuba, Iran, North Korea, Sudan and Syria) (any such country or territory, a “ Designated Jurisdiction ”) or (z) is owned or controlled by any Person or Persons that is described in the foregoing clauses (x) or (y).  

(ii)            No borrowing under this Agreement, nor the proceeds from any borrowing under this Agreement, will be used by any Borrower directly or, to the knowledge of the Company, indirectly, to lend, contribute, provide or will otherwise be made available (x) to fund any activity or business in any Designated Jurisdiction, (y) to the knowledge of the Company, to fund any activity or business of any Person who is the subject of any Sanctions or (z) in any manner that would result in the violation of any Sanctions applicable to any party hereto.

(l)              The Company and its Subsidiaries are in compliance, in all material respects, with (a) all of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) and any enabling legislation or executive order relating thereto and (b) the Act.
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(m)              Neither the Company nor any Subsidiary will use the proceeds from any borrowing or Letter of Credit under this Agreement (i) to make an unlawful offer, promise or payment to a foreign public official or (ii) in any manner that would cause the Borrowers or any Subsidiary to violate the Foreign Corrupt Practices Act, 15 U.S.C. §§ 78dd-1, et seq. in all material respects.

(n)              After giving effect to the consummation of the Transactions (including the execution and delivery of this Agreement, the making of the Advances and Letters of Credit and the use of proceeds of such Advances and Letters of Credit on the Closing Date), the Company and its Subsidiaries on a consolidated basis are Solvent.

ARTICLE V

COVENANTS OF THE COMPANY

Section 5.01   Affirmative Covenants .  From and after the Closing Date, so long as any Advance shall remain unpaid, any Letter of Credit shall be outstanding or any Lender shall have any Commitment hereunder, the Company will, unless the Majority Lenders shall otherwise consent in writing:

(a)              Compliance with Laws, Etc .  Comply, and cause each Subsidiary to comply, with all applicable laws, rules, regulations and orders (such compliance to include paying before the same become delinquent all Taxes, assessments and governmental charges imposed upon it or upon its property except to the extent contested in good faith) the failure to comply with which would have a material adverse effect on the business, financial condition or results of operations of the Company and its Subsidiaries taken as a whole.

(b)              Consolidated Leverage Ratio .  Maintain a Consolidated Leverage Ratio as of the last day of (i) each of the first six Reference Periods ending after the Closing Date (commencing with the Reference Period that includes the first full fiscal quarter ending after the Closing Date) of not more than 4.50:1.0, (ii) the next two following Reference Periods of not more than 4.25:1.0, (iii) the next two following Reference Periods of not more than 4:00:1.0 and (iv) each Reference Period thereafter of not more than 3.75:1.00.

(c)              Consolidated Interest Coverage Ratio .  Maintain a Consolidated Interest Coverage Ratio for each Reference Period (commencing with the Reference Period that includes the first full fiscal quarter ending after the Closing Date) of not less than 3.50:1.0; provided that for purposes of the foregoing calculation, Consolidated Interest Expense for the Reference Period ended (i) as of the last day of the first full fiscal quarter ending after the Closing Date shall be Consolidated Interest Expense for such first full fiscal quarter ending after the Closing Date multiplied by four, (ii) as of the last day of the second full fiscal quarter ending after the Closing Date shall be Consolidated Interest Expense for the first two full fiscal quarters ending after the Closing Date multiplied by two and (iii) as of the last day of the third full fiscal quarter ending after the Closing Date shall be Consolidated Interest Expense for the first three full fiscal quarters ending after the Closing Date multiplied by 4/3.

(d)              Preservation of Corporate Existence, Etc .  Preserve and maintain, and cause each of its Subsidiaries to preserve and maintain, its corporate existence, and the rights (charter and statutory) and franchises material to the business of the Company and its Subsidiaries, taken as a whole; provided , however , that (i) the Company and its Subsidiaries may consummate any merger or consolidation permitted under Section 5.02(c) , (ii) neither the Company nor any of its Subsidiaries shall be required to preserve any such right or franchise if the Company or such Subsidiary shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company or such Subsidiary, as the case may be, and that the loss thereof is not disadvantageous in any material respect to the Company, such Subsidiary or the Lenders and (iii) no Subsidiary shall be required to preserve its corporate existence if the Company has determined to liquidate or dissolve such Subsidiary and such liquidation or dissolution will not violate any other provision of this Agreement.
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(e)              Keeping of Books .  Keep, and cause each of its Subsidiaries to keep, proper books of record and account, in which full and correct entries shall be made of all financial transactions and the assets and business of the Company and each such Subsidiary in a manner which will permit the preparation of consolidated financial statements in accordance with GAAP.

(f)              Maintenance of Properties, Etc .  Maintain and preserve, and cause each of its Subsidiaries to maintain and preserve, all of its properties that are material to the conduct of the business of the Company and its Subsidiaries, taken as a whole, in good working order and condition, ordinary wear and tear excepted.

(g)              Insurance .  Maintain, and cause each Subsidiary to maintain, insurance with reputable insurance companies or associations in such amount and covering such risks as the Company, in its good faith business judgment, believes necessary.

(h)              ERISA .  Ensure that the Company and each ERISA Affiliate will meet its minimum funding requirements and all of its other obligations under ERISA with respect to all of its Plans and satisfy all of its obligations to Multiemployer Plans, including any Withdrawal Liability, except, in each case, where the failure to do so would not have a material adverse effect on the business, financial condition or results of operations of the Company and its Subsidiaries, taken as a whole.

(i)              Reporting Requirements .  Furnish to each Lender:

(i)              as soon as available and in any event within 60 days after the end of each of the first three quarters of each year, balance sheets of the Company and the Subsidiaries, on a consolidated basis, as of the end of such quarter and statements of income and retained earnings and cash flow of the Company and the Subsidiaries, on a consolidated basis, for the period commencing at the end of the previous year and ending with the end of such quarter, certified by the chief financial officer of the Company, subject to audit and year-end adjustments;

(ii)              as soon as available and in any event within 120 days after the end of each year, a copy of the balance sheets of the Company and the Subsidiaries, on a consolidated basis, as of the end of such year and the statements of income and retained earnings and cash flow of the Company and the Subsidiaries, on a consolidated basis, for such year, certified by Deloitte & Touche LLP, KPMG LLP or another independent nationally recognized firm of public accountants;

(iii)              as soon as possible and in any event within 10 days after an officer of the Company becomes aware of the occurrence of each Event of Default (and each event which, with the giving of notice or lapse of time, or both, would constitute an Event of Default), an Officer’s Certificate setting forth details of such Event of Default or event and the action which the Company has taken and proposes to take with respect thereto;
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(iv)              contemporaneously with each delivery of the statements referred to in clauses (i) and (ii) above, (A) either an Officer’s Certificate stating that no Event of Default (other than by reason of non-compliance with the covenants referred to in Sections 5.01(b) and (c) ) and no event which, with the giving of notice or lapse of time, or both, would constitute an Event of Default (other than by reason of non-compliance with the covenants referred to in Sections 5.01(b) and (c) ) occurred during such quarter or, if applicable, an Officer’s Certificate pursuant to clause (iii) above, (B) an Officer’s Certificate stating that, as of the last day of the preceding quarter, and to the best of his or her knowledge, at all times during the preceding quarter, the Company was in compliance with the covenants referred to in Sections 5.01(b) and (c) and providing reasonable details of the calculations evidencing the Company’s compliance with such covenants and (C) reasonable details of each material change in GAAP from those applied in preparing the statements referred to in Section 4.01(e)(i) insofar as such changes are applicable to the statements referred to in clauses (i) and (ii) above;

(v)              promptly after the sending or filing thereof, copies of all reports which the Company sends to any of its shareholders, and copies of all reports and registration statements which the Company or any Subsidiary files with the SEC or any national securities exchange (other than those pertaining to employee benefit plans); and

(vi)              such other information respecting the condition or operations, financial or otherwise, of the Company or any Subsidiary as any Lender through the Administrative Agent may from time to time reasonably request.

Reports and financial statements required to be delivered by the Company pursuant to paragraphs (i), (ii) and (v) of this Section 5.01(i) shall be deemed to have been delivered on the date on which such reports containing such financial statements are posted on the SEC’s website at www.sec.gov ; provided that the Company shall deliver paper copies of the reports and financial statements referred to in paragraphs (i), (ii) and (v) of this Section 5.01(i) to the Administrative Agent or any Lender who requests it to deliver such paper copies until written notice to cease delivering paper copies is given by the Administrative Agent or such Lender.

(j)              Use of Proceeds .  Ensure that (i) the proceeds of the Term Loans are used solely to finance a special cash dividend to TDCC and other payments required by the Merger Agreement, to consummate the Refinancing, to pay costs and expenses in connection with the Transactions and for general corporate purposes, (ii) the proceeds of the Revolving Advances and Bid Advances will be used solely for working capital and other general corporate purposes (including permitted acquisitions and other permitted investments) and (iii) the Letters of Credit will used solely to support obligations of the Company and its Subsidiaries incurred in the ordinary course of business.

Section 5.02   Negative Covenants .  From and after the Closing Date, so long as any Advance shall remain unpaid, any Letter of Credit shall be outstanding or any Lender shall have any Commitment hereunder, the Company will not, without the written consent of the Majority Lenders:

(a)              Liens .  Create, assume or suffer to exist or permit any Subsidiary of the Company to create, assume or suffer to exist any Lien upon any of its property or assets, whether now owned or hereafter acquired, except:

(i)              Permitted Encumbrances;

(ii)              other Liens incidental to the conduct of its business or the ownership of its property and assets which were not incurred to secure Indebtedness, and which do not in the aggregate materially detract from the value of its property or assets or materially impair the use thereof in the operation of its business;
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(iii)              Liens on property or assets of (w) a Domestic Subsidiary (other than the Spinco Borrower) to secure obligations of such Subsidiary to the Company or another Domestic Subsidiary, (x) the Spinco Borrower to secure obligations of the Spinco Borrower to the Company, (y) a Foreign Subsidiary (other than the Canadian Borrower) to secure obligations of such Subsidiary to the Company or any other Subsidiary and (z) the Canadian Borrower to secure obligations of the Canadian Borrower to the Company or the Spinco Borrower;

(iv)              any Lien on property of any Foreign Subsidiary (other than the Canadian Borrower) to secure Indebtedness of such Subsidiary, provided that, immediately after giving effect thereto and to the concurrent repayment of any other Indebtedness, the aggregate principal amount of outstanding Indebtedness secured by Liens permitted by this clause (iv) or by clause (vi) or (ix) of this Section does not exceed 10% of Consolidated Net Tangible Assets;

(v)              Liens incurred in connection with any Tax-Exempt Financing which do not in the aggregate materially detract from the value of the property or assets affected thereby or materially impair the use of such property or assets in the operation of its business;

(vi)              Liens on property or assets granted in connection with applications for or reimbursement obligations with respect to letters of credit issued at the request of the Company or a Subsidiary by a banking institution to secure the performance of obligations of the Company or a Subsidiary relating to such letters of credit, to the extent such banking institution requested the granting to it of such Lien as a condition for its issuance of the letter of credit; provided that, immediately after giving effect thereto and to the concurrent repayment of any other Indebtedness, the aggregate principal amount of outstanding Indebtedness secured by Liens permitted by this clause (vi) or by clause (iv) or (ix) of this Section does not exceed 10% of Consolidated Net Tangible Assets;

(vii)              any Lien existing on any property or asset prior to the acquisition thereof by the Company or any Subsidiary or existing on any property or asset of any Person that becomes a Subsidiary after the Effective Date prior to the time such Person becomes a Subsidiary; provided that (A) such Lien is not created in contemplation of or in connection with such acquisition or such Person becoming a Subsidiary, as the case may be, (B) such Lien shall not apply to any other property or assets of the Company or any Subsidiary and (C) such Lien shall secure only those obligations which it secures on the date of such acquisition or the date such Person becomes a Subsidiary, as the case may be, and extensions, renewals and replacements thereof that do not increase the outstanding principal amount thereof;

(viii)              Liens on fixed or capital assets acquired, constructed or improved by the Company or any Subsidiary; provided that (A) with respect to Liens securing Indebtedness of any Domestic Subsidiary, such Liens secure Indebtedness permitted by clauses (iii) or (iv) of Section 5.02(b) , (B) such Liens and the Indebtedness secured thereby are incurred prior to or within 90 days after acquisition or the completion of such construction or improvement, (C) the Indebtedness secured thereby does not exceed 100% of the cost of acquiring, constructing or improving such fixed or capital assets and (D) such Liens shall not apply to any other property or assets of the Company or any Subsidiary;

(ix)              Liens on assets securing other obligations of the Company and its Subsidiaries not expressly permitted by clauses (i) through (viii) above; provided that, immediately after giving effect thereto and to the concurrent repayment of any other secured obligations, the aggregate principal amount of outstanding obligations secured by Liens permitted by this clause (ix) or by clause (iv) or (vi) of this Section does not exceed 10% of Consolidated Net Tangible Assets;
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(x)              Liens on Margin Stock, if and to the extent the value of all Margin Stock of the Company and its Subsidiaries exceeds 25% of the value of the total assets subject to this Section 5.02(a) (it being understood that Margin Stock not in excess of 25% of the value of such assets will be subject to the restrictions of this Section 5.02(a) );

(xi)              Liens on assets of the JV and its Subsidiaries securing Indebtedness permitted under Section 5.02(b)(v); provided that (A) such Lien shall not apply to any other property or assets of the Company or any Subsidiary and (B) such Lien shall secure only those obligations which it secures on the Effective Date, and extensions, renewals and replacements thereof that do not increase the outstanding principal amount thereof;

(xii)              Liens on the assets of any Subsidiary incurred during the period after the Effective Date and prior to the Closing Date; provided that (A) such Liens were incurred in the ordinary course of business, (B) such Liens were not incurred in contemplation of the Merger and (C) the aggregate principal amount of outstanding obligations secured by Liens permitted by this clause (xii) does not exceed $10,000,000; and

(xiii)             Liens on Receivables Related Assets of a Receivables Subsidiary pursuant to a Permitted Receivables Facility.

(b)              Domestic Subsidiary Indebtedness .  Permit any Domestic Subsidiary (other than the Spinco Borrower or any Additional Borrower) to create, incur, assume or permit to exist any Indebtedness, except:

(i)              Indebtedness of any Domestic Subsidiary to the Company or any other Domestic Subsidiary;

(ii)              Indebtedness of any Domestic Subsidiary outstanding on the Effective Date (other than (x) Indebtedness outstanding under the Existing Credit Agreement and (y) Indebtedness outstanding under the JV Credit Agreement);

(iii)              Indebtedness incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof; provided that such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement;

(iv)              Indebtedness of any Person that becomes a Domestic Subsidiary after the Effective Date (other than (x) Indebtedness outstanding under the Existing Credit Agreement and (y) Indebtedness outstanding under the JV Credit Agreement); provided that such Indebtedness exists at the time such Person becomes a Domestic Subsidiary and is not created in contemplation of or in connection with such Person becoming a Domestic Subsidiary;
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(v)              (x) in the event that the Company and/or TDCC obtain the Necessary JV Consents, Indebtedness of the JV under the JV Credit Agreement in an aggregate principal amount not exceeding the outstanding principal amount of such Indebtedness as of the Effective Date or (y) in the event that the Company and/or TDCC does not obtain the Necessary JV Consents, Indebtedness of the JV to refinance the Indebtedness under the JV Credit Agreement in an aggregate principal amount not exceeding the outstanding principal amount of such Indebtedness as of the Effective Date (as such amount may be reduced from time to time) plus the reasonable costs, expenses, accrued interest or premiums in connection with such refinancing;

(vi)              Indebtedness of any Receivables Subsidiaries in respect of any Permitted Receivables Facilities in an aggregate principal amount not exceeding US$500,000,000 at any time outstanding; and

(vii)              other Indebtedness in an aggregate principal amount not exceeding US$40,000,000 at any time outstanding.

(c)              Mergers, Etc .  (i) Merge or consolidate with or into any other Person (other than a Subsidiary) or (ii) convey, transfer, lease or otherwise dispose of, or permit a Subsidiary to convey, transfer, lease, or otherwise dispose of (whether in one transaction or in a series of related transactions), all or substantially all of the property or assets of the Company and its Subsidiaries taken as a whole (whether now owned or hereafter acquired), directly or indirectly, to any Person, including through a merger or consolidation of a Subsidiary with an unaffiliated party, unless (A) in each case of (i) or (ii), after giving effect to such proposed transaction, no Event of Default or event which with the giving of notice or lapse of time, or both, would constitute an Event of Default would exist and (B) in the case of clause (i), the surviving corporation is the Company, provided that to the extent that the value of all Margin Stock owned by the Company and its Subsidiaries taken as a whole exceeds 25% of the value of the total assets of the Company and its Subsidiaries subject to this Section 5.02(c) , nothing in this Section 5.02(c) shall prohibit the sale of such Margin Stock (it being understood that Margin Stock not in excess of 25% of the value of such assets will be subject to the restrictions of this Section 5.02(c) ).

(d)              Change in Nature of Business .  Engage, or permit any of its Subsidiaries to engage, to any material extent, in any business other than the businesses of the type conducted by the Company and its Subsidiaries on the Effective Date (assuming the Transactions were consummated on the Effective Date) and businesses reasonably related thereto.

(e)              ERISA .  Create, assume or suffer to exist or permit any ERISA Affiliate to create, assume or suffer to exist (i) any Insufficiency of any Plan with respect to which an ERISA Event has occurred (or, in the case of a Plan with respect to which an ERISA Event described in clauses (iii) through (v) of the definition of ERISA Event shall have occurred and then exist, the liability of the Company and the ERISA Affiliates related thereto), or (ii) any Withdrawal Liability under any Multiemployer Plan, in each case, if the sum of (A) any such Insufficiency or Withdrawal Liability, as applicable, (B) the Insufficiency of any and all other Plans with respect to which an ERISA Event shall have occurred and then exist (or, in the case of a Plan with respect to which an ERISA Event described in clauses (iii) through (v) of the definition of ERISA Event shall have occurred and then exist, the liability of the Company and the ERISA Affiliates related thereto), (C) amounts then required to be paid to any and all other Multiemployer Plans by the Company or the ERISA Affiliates as Withdrawal Liability and (D) the aggregate principal amount of all Indebtedness of the Company and all the Subsidiaries secured by Liens permitted by clauses (iv), (vi), (vii), (viii) and (ix) of Section 5.02(a) , shall exceed 10% of Consolidated Net Tangible Assets.
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(f)              Use of Proceeds .  Request any Advance or Letter of Credit, and the Company shall not use, and shall procure that its Subsidiaries and its or their respective directors, officers, employees and agents shall not use, the proceeds of any Advance or Letter of Credit (a) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws, (b) for the purpose of funding or financing any activities, business or transaction of or with any Sanctioned Person, or in any Designated Jurisdiction, to the extent such activities, businesses or transaction would be prohibited by Sanctions if conducted by a corporation incorporated in the United States or in a European Union member state or (c) in any manner that would result in the violation of  any Sanctions applicable to any party hereto.

ARTICLE VI

EVENTS OF DEFAULT

Section 6.01   Events of Default .  If any of the following events (“ Events of Default ”) shall occur and be continuing after the Closing Date:

(a)              Any Borrower shall fail to pay (i) any principal of any Advance made to such Borrower when the same becomes due and payable or (ii) any interest on any Advance made to such Borrower or any fees or other amounts payable under this Agreement within five days of the same becoming due and payable; or

(b)              Any representation or warranty made by any Borrower herein or by any Borrower (or any of its officers) in connection with this Agreement shall prove to have been incorrect in any material respect when made; or

(c)              Any Borrower shall fail to perform or observe (i) any term, covenant or agreement contained in Section 5.01(b) , (c) or (i)(iii) or Section 5.02 , or (ii) any term, covenant or agreement contained in any Loan Document (other than as referred to in subsection (a) or clause (i) above) on its part to be performed or observed if, in the case of this clause (ii), such failure shall remain unremedied for 30 days after written notice thereof shall have been given to the Company by the Administrative Agent or any Lender; or

(d)              The Company or any Subsidiary shall fail to pay any installment of principal of or any premium or interest on any Indebtedness, which is outstanding in a principal amount of at least US$50,000,000 in the aggregate (but excluding Indebtedness outstanding hereunder) of the Company or such Subsidiary (as the case may be), when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Indebtedness, or any other event shall occur or condition shall exist under any agreement or instrument relating to any such Indebtedness and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such event or condition is to accelerate, or to permit the acceleration of, the maturity of such Indebtedness, or any Indebtedness of the Company or any Subsidiary which is outstanding in an aggregate principal amount of at least US$50,000,000 shall, for any reason, be accelerated (it being understood that a mandatory prepayment on the sale of any asset shall be deemed not to be an acceleration of the Indebtedness secured by such asset); or

(e)              Any Borrower or any Significant Subsidiary or any two or more Subsidiaries which (when taken together) would have aggregate total assets constituting those of a Significant Subsidiary shall generally not pay its debts as such debts become due, or shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against such Borrower or any such Subsidiary seeking to adjudicate it as bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts under any Debtor Relief Law, and, in the case of any such proceeding instituted against a Borrower or such Subsidiary (but not instituted by it), either such proceeding shall not be dismissed or stayed for 60 days or any of the actions sought in such proceeding (including the entry of an order for relief against it or the appointment of a trustee, custodian or other similar official for it or any substantial part of its property) shall occur; or a Borrower or any such Subsidiary shall take any corporate action to authorize any of the actions set forth above in this subsection (e); or
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(f)              Any judgment or order for the payment of money in excess of US$50,000,000 shall be rendered against the Company or any Subsidiary and either (i) enforcement proceedings shall have been commenced by any creditor upon such judgment or order and, within 60 days of the commencement of such proceedings, such judgment shall not have been satisfied or (subject to clause (ii) below) shall have been stayed or (ii) there shall be any period of 60 consecutive days during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect; or

(g)              The Company or any of its ERISA Affiliates shall incur liability in excess of US$50,000,000 in the aggregate as a result of one or more of the following: (i) the occurrence of any ERISA Event with respect to a Plan; (ii) the partial or complete withdrawal of the Company or any of its ERISA Affiliates from a Multiemployer Plan; or (iii) the insolvency or termination of a Multiemployer Plan; or

(h)              Article VII hereof shall for any reason cease to be valid and binding on or enforceable against any Guarantor, or any Borrower shall so state in writing;

then, and in any such event, the Administrative Agent (i) shall at the request, or may with the consent of the Majority Lenders, by notice to the Borrowers declare the obligation of each Lender to make Advances (other than Revolving Advances by an Issuing Bank or a Lender pursuant to Section 2.02(b) ) and of the Issuing Banks to issue Letters of Credit to be terminated, whereupon the same shall forthwith terminate, and (ii) shall at the request, or may with the consent of the Majority Lenders, by notice to the Borrowers, declare the Notes, all interest thereon and all other amounts payable under this Agreement to be forthwith due and payable, whereupon the Notes, all such interest and all such amounts shall become and be forthwith due and payable, without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived by the Borrowers; provided , however , that in the event of an Event of Default resulting from the actual or deemed entry of an order for relief with respect to a Borrower under the Federal Bankruptcy Code, (A) the obligation of each Lender to make Advances (other than Revolving Advances by an Issuing Bank or a Lender pursuant to Section 2.02(b) ) and of the Issuing Banks to issue Letters of Credit shall automatically be terminated and (B) the Notes, all such interest and all such amounts shall automatically become and be due and payable, without presentment, demand, protest or any notice of any kind, all of which are hereby expressly waived by the Borrowers.

Section 6.02   Actions in Respect of the Letters of Credit upon Event of Default .  If any Event of Default shall have occurred and be continuing, the Administrative Agent may with the consent, or shall at the request, of the Lenders having more than 50% of the Revolving Commitments, irrespective of whether it is taking any of the actions described in Section 6.01 or otherwise, make demand upon the Company to, and forthwith upon such demand the Company will, (a) pay to the Administrative Agent on behalf of the Revolving Lenders in same day funds at the Administrative Agent’s office designated in such demand, for deposit in the L/C Cash Collateral Account, an amount equal to the aggregate Available Amount of all Letters of Credit then outstanding or (b) make such other arrangements in respect of the outstanding Letters of Credit as shall be acceptable to the Lenders having more than 50% of the Revolving Commitments; provided , however , that in the event of an actual or deemed entry of an order for relief with respect to a Borrower under the Federal Bankruptcy Code, an amount equal to the aggregate Available Amount of all outstanding Letters of Credit shall be immediately due and payable to the Administrative Agent for the account of the Lenders without notice to or demand upon the Borrowers, which are expressly waived by each Borrower, to be held in the L/C Cash Collateral Account.  If at any time the Administrative Agent determines that any funds held in the L/C Cash Collateral Account are subject to any right or claim of any Person other than the Administrative Agent and the Revolving Lenders or that the total amount of such funds is less than the aggregate Available Amount of all Letters of Credit, the Company will, forthwith upon demand by the Administrative Agent, pay to the Administrative Agent, as additional funds to be deposited and held in the L/C Cash Collateral Account, an amount equal to the excess of (a) such aggregate Available Amount over (b) the total amount of funds, if any, then held in the L/C Cash Collateral Account that the Administrative Agent determines to be free and clear of any such right and claim.  Upon the drawing of any Letter of Credit, to the extent funds are on deposit in the L/C Cash Collateral Account, such funds shall be applied to reimburse the Issuing Bank or the Revolving Lenders, as applicable, to the extent permitted by applicable law.  The Administrative Agent, in its sole discretion and at the risk and expense of the Company, may invest the funds in the L/C Cash Collateral Account, and interest or profits therefrom (if any) shall accumulate in the L/C Cash Collateral Account.  At any time that the amount of funds in the L/C Cash Collateral Account exceeds the Available Amount of all Letters of Credit outstanding, the Administrative Agent shall promptly return such excess amount to the Company.  All amounts in the L/C Cash Collateral Account shall be returned to the Company upon the earlier of (x) the date that all Letters of Credit shall have expired or been fully drawn upon and all reimbursement obligations shall have been satisfied and (y) the date on which no Event of Default shall be continuing or on which every Event of Default shall have been waived.
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Section 6.03  Administrative Agent May File Proofs of Claim .  In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Borrower, the Administrative Agent (irrespective of whether the principal of any Advance or L/C Obligation shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the applicable Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise:

(a)              to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Advances, L/C Obligations and all other obligations in respect of this Agreement and the Notes that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders, the Issuing Banks and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders, the Issuing Banks and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders, the Issuing Banks and the Administrative Agent under Sections 2.03 , 10.04 and 10.06 ) allowed in such judicial proceeding; and

(b)              to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;

and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender and the Issuing Banks to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders and the Issuing Banks, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Sections 2.03 , 10.04 and 10.06 .
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ARTICLE VII

GUARANTY

Section 7.01   Guaranty .  Each Guarantor hereby absolutely, unconditionally and irrevocably guarantees the punctual payment when due, whether at scheduled maturity or on any date of a required prepayment or by acceleration, demand or otherwise, of all obligations of the Other Borrowers now or hereafter existing under or in respect of this Agreement and the Notes (including any extensions, modifications, substitutions, amendments or renewals of any or all of the foregoing obligations), whether direct or indirect, absolute or contingent, and whether for principal, interest, premiums, fees, indemnities, contract causes of action, costs, expenses or otherwise (such obligations being the “ Guaranteed Obligations ”; provided that, with respect to any Guarantor, the Guaranteed Obligations shall not include its obligations under this Agreement and the Notes).  Each Guarantor agrees that its Guaranty constitutes a guarantee of payment and not merely of collection. Without limiting the generality of the foregoing, the liability of each Guarantor shall extend to all amounts that constitute part of the Guaranteed Obligations and would be owed by any Other Borrower to the Administrative Agent or any Lender under or in respect of this Agreement and the Notes but for the fact that they are unenforceable or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving any such Other Borrower.

Section 7.02  Guaranty Absolute .  Each Guarantor guarantees that the Guaranteed Obligations will be paid strictly in accordance with the terms of this Agreement and the Notes, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of the Administrative Agent or any Lender with respect thereto.  The obligations of each Guarantor under or in respect of this Guaranty are independent of the Guaranteed Obligations or any other obligations of any Other Borrower under or in respect of this Agreement and the Notes, and a separate action or actions may be brought and prosecuted against any Guarantor to enforce this Guaranty, irrespective of whether any action is brought against any Other Borrower or whether any Other Borrower is joined in any such action or actions. The liability of each Guarantor under this Guaranty shall be irrevocable, absolute and unconditional irrespective of, and each Guarantor hereby irrevocably waives any defenses it may now have or hereafter acquire in any way relating to, any or all of the following:

(a)              any lack of validity or enforceability of this Agreement, any Note or any agreement or instrument relating thereto;

(b)              any change in the time, manner or place of payment of, or in any other term of, all or any of the Guaranteed Obligations or any other obligations of any Other Borrower under or in respect of this Agreement and the Notes, or any other amendment or waiver of or any consent to departure from this Agreement or any Note, including any increase in the Guaranteed Obligations resulting from the extension of additional credit to any Other Borrower or any of its Subsidiaries or otherwise;

(c)              any taking, exchange, release or non-perfection of any collateral, or any taking, release or amendment or waiver of, or consent to departure from, any other guaranty, for all or any of the Guaranteed Obligations;

(d)              any manner of application of any collateral, or proceeds thereof, to all or any of the Guaranteed Obligations, or any manner of sale or other disposition of any collateral for all or any of the Guaranteed Obligations or any other obligations of any Other Borrower under this Agreement and the Notes or any other assets of any Other Borrower or any of its Subsidiaries;
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(e)              any change, restructuring or termination of the corporate structure or existence of any Other Borrower or any of its Subsidiaries;

(f)              any failure of the Administrative Agent or any Lender to disclose to any Guarantor any information relating to the business, condition (financial or otherwise), operations, performance, properties or prospects of any Other Borrower now or hereafter known to the Administrative Agent or such Lender (each Guarantor waiving any duty on the part of the Administrative Agent and the Lenders to disclose such information);

(g)              the failure of any other Person to execute or deliver this Guaranty or any other guaranty or agreement or the release or reduction of liability of any Guarantor or other guarantor or surety with respect to the Guaranteed Obligations; or

(h)              any other circumstance (including any statute of limitations) or any existence of or reliance on any representation by the Administrative Agent or any Lender that might otherwise constitute a defense available to, or a discharge of, any Other Borrower or any other guarantor or surety.

This Guaranty shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Guaranteed Obligations is rescinded or must otherwise be returned by the Administrative Agent or any Lender or any other Person upon the insolvency, bankruptcy or reorganization of any Other Borrower or otherwise, all as though such payment had not been made.

Section 7.03   Waivers and Acknowledgments .  (a)  Each Guarantor hereby unconditionally and irrevocably waives promptness, diligence, notice of acceptance, presentment, demand for performance, notice of nonperformance, default, acceleration, protest or dishonor and any other notice with respect to any of the Guaranteed Obligations and this Guaranty and any requirement that the Administrative Agent or any Lender protect, secure, perfect or insure any Lien or any property subject thereto or exhaust any right or take any action against any Other Borrower, any other guarantor or any other Person or any collateral.

(b)              Each Guarantor hereby unconditionally and irrevocably waives any right to revoke this Guaranty and acknowledges that this Guaranty is continuing in nature and applies to all Guaranteed Obligations, whether existing now or in the future.

(c)              Each Guarantor hereby unconditionally and irrevocably waives (i) any defense arising by reason of any claim or defense based upon an election of remedies by the Administrative Agent or any Lender that in any manner impairs, reduces, releases or otherwise adversely affects the subrogation, reimbursement, exoneration, contribution or indemnification rights of such Guarantor or other rights of such Guarantor to proceed against any Other Borrower, any other guarantor or any other Person or any collateral and (ii) any defense based on any right of set-off or counterclaim against or in respect of the obligations of such Guarantor hereunder.

(d)              Each Guarantor hereby unconditionally and irrevocably waives any duty on the part of the Administrative Agent or any Lender to disclose to such Guarantor any matter, fact or thing relating to the business, condition (financial or otherwise), operations, performance, properties or prospects of any Other Borrower or any of its Subsidiaries now or hereafter known by the Administrative Agent or such Lender.

(e)              Each Guarantor acknowledges that it will receive substantial direct and indirect benefits from the financing arrangements contemplated by this Agreement and the Notes and that the waivers set forth in Section 7.02 and this Section 7.03 are knowingly made in contemplation of such benefits.
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Section 7.04   Subrogation .  Each Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against any Other Borrower or any other insider guarantor that arise from the existence, payment, performance or enforcement of such Guarantor’s obligations under or in respect of this Guaranty, including any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Administrative Agent or any Lender against any Other Borrower, any other Guarantor or any other insider guarantor or any collateral, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including the right to take or receive from any Other Borrower, any other Guarantor or any other insider guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, (x) unless and until all of the Guaranteed Obligations shall have been paid in full in cash and the Revolving Commitments shall have expired or been terminated or (y) unless no Default shall have occurred and be continuing.  If any amount shall be paid to any Guarantor in violation of the immediately preceding sentence at any time prior to the later of (a) the payment in full in cash of the Guaranteed Obligations and (b) the latest Termination Date, such amount shall be received and held in trust for the benefit of the Administrative Agent and the Lenders, shall be segregated from other property and funds of such Guarantor and shall forthwith be paid or delivered to the Administrative Agent in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, whether matured or unmatured, in accordance with the terms of this Agreement and the Notes, or to be held as collateral for any Guaranteed Obligations or other amounts payable under this Guaranty thereafter arising.  If (i) any Guarantor shall make payment to the Administrative Agent or any Lender of all or any part of the Guaranteed Obligations, (ii) all of the Guaranteed Obligations shall have been paid in full in cash and (iii) the latest Termination Date shall have occurred, the Administrative Agent and the Lenders will, at such Guarantor’s request and expense, execute and deliver to such Guarantor appropriate documents, without recourse and without representation or warranty, necessary to evidence the transfer by subrogation to such Guarantor of an interest in the Guaranteed Obligations resulting from such payment made by such Guarantor pursuant to this Guaranty.

Section 7.05   Subordination .  Each Guarantor hereby subordinates any and all debts, liabilities and other obligations owed to such Guarantor by the Other Borrowers (the “ Subordinated Obligations ”) to the Guaranteed Obligations to the extent and in the manner hereinafter set forth in this Section 7.05 :

(a)              Prohibited Payments, Etc .  Except during the continuance of an Event of Default (including the commencement and continuation of any proceeding under any Debtor Relief Law relating to any Other Borrower), the Guarantors may receive regularly scheduled payments from the Other Borrowers on account of the Subordinated Obligations.  After the occurrence and during the continuance of any Event of Default (including the commencement and continuation of any proceeding under any Debtor Relief Law relating to any Other Borrower), however, unless the Majority Lenders otherwise agree, no Guarantor shall demand, accept or take any action to collect any payment on account of the Subordinated Obligations.

(b)              Prior Payment of Guaranteed Obligations .  In any proceeding under any Debtor Relief Law relating to any Other Borrower, each Guarantor agrees that the Administrative Agent and the Lenders shall be entitled to receive payment in full in cash of all Guaranteed Obligations (including all interest and expenses accruing after the commencement of a proceeding under any Debtor Relief Law, whether or not constituting an allowed claim in such proceeding (“ Post-Petition Interest ”)) before such Guarantor receives payment of any Subordinated Obligations.
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(c)              Turn-Over .  After the occurrence and during the continuance of any Event of Default (including the commencement and continuation of any proceeding under any Debtor Relief Law relating to any Other Borrower), each Guarantor shall, if the Administrative Agent so requests, collect, enforce and receive payments on account of the Subordinated Obligations as trustee for the Administrative Agent and the Lenders and deliver such payments to the Administrative Agent on account of the Guaranteed Obligations (including all Post-Petition Interest), together with any necessary endorsements or other instruments of transfer, but without reducing or affecting in any manner the liability of such Guarantor under the other provisions of this Guaranty.

(d)              Administrative Agent Authorization .  After the occurrence and during the continuance of any Event of Default (including the commencement and continuation of any proceeding under any Debtor Relief Law relating to any Other Borrower), the Administrative Agent is authorized and empowered (but without any obligation to so do), in its discretion, (i) in the name of any applicable Guarantor, to collect and enforce, and to submit claims in respect of, Subordinated Obligations and to apply any amounts received thereon to the Guaranteed Obligations (including any and all Post-Petition Interest), and (ii) to require any applicable Guarantor (A) to collect and enforce, and to submit claims in respect of, Subordinated Obligations and (B) to pay any amounts received on such obligations to the Administrative Agent for application to the Guaranteed Obligations (including any and all Post-Petition Interest).

Section 7.06     Continuing Guaranty; Assignments .  This Guaranty is a continuing guaranty and shall (a) remain in full force and effect until the later of (i) the payment in full in cash of the Guaranteed Obligations and (ii) the latest Termination Date, (b) be binding upon the Guarantors, their respective successors and assigns and (c) inure to the benefit of and be enforceable by the Administrative Agent and the Lenders and their successors, transferees and assigns.  Without limiting the generality of clause (c) of the immediately preceding sentence, the Administrative Agent or any Lender may assign or otherwise transfer all or any portion of its rights and obligations under this Agreement (including all or any portion of its Commitments, the Advances owing to it and the Note or Notes held by it) to any other Person, and such other Person shall thereupon become vested with all the benefits in respect thereof granted to the Administrative Agent or such Lender herein or otherwise, in each case as and to the extent provided in Section 9.02 .  No Guarantor shall have the right to assign its rights hereunder or any interest herein without the prior written consent of the Administrative Agent and the Lenders.

ARTICLE VIII

THE AGENT

Section 8.01   Appointment and Authority .  Each of the Lenders and the Issuing Banks hereby irrevocably appoints Wells Fargo to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto.  Except to the extent expressly provided in Section 8.07 , the provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and the Issuing Banks, and neither the Borrowers nor any of their respective Subsidiaries shall have rights as a third-party beneficiary of any of such provisions.  It is understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or any other similar term) with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law.  Instead such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting parties.
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Section 8.02   Reliance by the Administrative Agent .  The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person.  The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon.  In determining compliance with any condition hereunder to the making of an Advance, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an Issuing Bank, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Advance or the issuance of such Letter of Credit.  The Administrative Agent may consult with legal counsel (who may be counsel for the Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.

Section 8.03   Rights as a Lender .  The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Administrative Agent hereunder in its individual capacity.  Such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders.

Section 8.04   Exculpatory Provisions .

(a)              The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents, and its duties hereunder and thereunder shall be administrative in nature.  Without limiting the generality of the foregoing, the Administrative Agent:

(i)              shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing;

(ii)              shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Majority Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents), provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law; and

(iii)              shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrowers or any of their respective Subsidiaries or Affiliates that is communicated to or obtained by the Person serving as the Administrative Agent or any of its Affiliates in any capacity.
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(b)              The Administrative Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Majority Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Section 6.01 and Section 10.01 ) or (ii) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final non-appealable judgment.  The Administrative Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until notice describing such Default or Event of Default is given to the Administrative Agent by the Company, a Lender or an Issuing Bank.

(c)              The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article III or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.

Section 8.05   Non-Reliance on Administrative Agent and Other Lenders .  Each Lender and each Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative Agent, any other Lender, any other Issuing Bank or any of their Related Parties, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement.  Each Lender and each Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative Agent, any other Lender, any other Issuing Bank or any of their Related Parties, and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under, or based upon, this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.

Section 8.06   Indemnification .  (a)  Each Lender severally agrees to indemnify the Administrative Agent (to the extent not reimbursed by the Company), from and against such Lender’s ratable share of any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever that may be imposed on, incurred by, or asserted against the Administrative Agent in any way relating to or arising out of this Agreement or any action taken or omitted by the Administrative Agent under this Agreement (collectively, the “ Indemnified Costs ”), provided that no Lender shall be liable for any portion of the Indemnified Costs resulting from the Administrative Agent’s gross negligence or willful misconduct as found in a final, non-appealable judgment by a court of competent jurisdiction.  Without limitation of the foregoing, each Lender agrees to reimburse the Administrative Agent promptly upon demand for its ratable share of any out-of-pocket expenses (including reasonable counsel fees) incurred by the Administrative Agent in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement, to the extent that the Administrative Agent is not reimbursed for such expenses by the Company.  In the case of any investigation, litigation or proceeding giving rise to any Indemnified Costs, this Section 8.06 applies whether any such investigation, litigation or proceeding is brought by the Administrative Agent, any Lender or a third party.

(b)              Each Revolving Lender severally agrees to indemnify each Issuing Bank (to the extent not promptly reimbursed by the Company) from and against such Lender’s ratable share (determined as provided below) of any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever that may be imposed on, incurred by, or asserted against such Issuing Bank in any way relating to or arising out of this Agreement or any action taken or omitted by such Issuing Bank hereunder or in connection herewith; provided , however , that no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the Issuing Bank’s gross negligence or willful misconduct as found in a final, non-appealable judgment by a court of competent jurisdiction.  Without limitation of the foregoing, each Revolving Lender agrees to reimburse each Issuing Bank promptly upon demand for its ratable share of any costs and expenses (including fees and expenses of counsel) payable by the Company under Section 10.04 , to the extent that the Issuing Bank is not promptly reimbursed for such costs and expenses by the Company.
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(c)              For purposes of this Section 8.06 , the Lenders’ respective ratable shares of any amount shall be determined, at any time, according to the sum of (i) the aggregate principal amount of the Term Loans (or prior to the Closing Date, Term Loan Commitments) and Revolving Advances outstanding at such time and owing to the respective Lenders, (ii) their respective Pro Rata Shares of the aggregate Available Amount of all Letters of Credit outstanding at such time and (iii) their respective Unused Revolving Commitments at such time; provided that the aggregate principal amount of Revolving Advances made as a result of a drawing under a Letter of Credit owing to the Issuing Bank shall be considered to be owed to the Lenders ratably in accordance with their respective Revolving Commitments.  The failure of any Lender to reimburse the Administrative Agent or the Issuing Bank, as the case may be, promptly upon demand for its ratable share of any amount required to be paid by the Lenders to such Administrative Agent or the Issuing Bank, as the case may be, as provided herein shall not relieve any other Lender of its obligation hereunder to reimburse such Administrative Agent or Issuing Bank, as the case may be, for its ratable share of such amount, but no Lender shall be responsible for the failure of any other Lender to reimburse the Administrative Agent or the Issuing Bank, as the case may be, for such other Lender’s ratable share of such amount.  Without prejudice to the survival of any other agreement of any Lender hereunder, the agreement and obligations of each Lender contained in this Section 8.06 shall survive the payment in full of principal, interest and all other amounts payable hereunder and under the Notes.

Section 8.07   Successor Agent .  The Administrative Agent may resign at any time by giving written notice thereof to the Lenders and the Company and may be removed at any time with or without cause by the Majority Lenders.  Upon any such resignation or removal, the Majority Lenders shall have the right to appoint a successor Administrative Agent, subject, so long as no Event of Default has occurred and is continuing, to the Company’s approval, whereupon such successor Administrative Agent shall succeed to and become vested with all the rights, powers, discretion, privileges and duties of the former Administrative Agent, and the term “Administrative Agent” shall mean such successor agent effective upon such appointment and approval, and the former Agent shall be discharged from its duties and obligations under this Agreement, other than the obligations provided in Section 10.12 , without any other or further act or deed on the part of such former Administrative Agent or any of the parties to this Agreement or any holders of the Loans.  If no successor agent has accepted appointment as Administrative Agent by the date that is 30 days following a retiring Administrative Agent’s notice of resignation, the retiring Administrative Agent’s resignation shall nevertheless thereupon become effective, and the Lenders shall assume and perform all of the duties of the Administrative Agent hereunder until such time, if any, as the Majority Lenders appoint a successor agent as provided for above.  After any retiring Administrative Agent’s resignation or removal hereunder as Administrative Agent, the provisions of this Article VIII shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent under this Agreement.

Section 8.08  No Other Duties, Etc.   Anything herein to the contrary notwithstanding, none of the syndication agents, documentation agents, co-agents, arrangers or bookrunners listed on the cover page hereof shall have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in its capacity, as applicable, as the Administrative Agent, a Lender or the an Issuing Bank hereunder.
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Section 8.09    Delegation of Duties .  The Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent.  The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties.  The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the Commitments as well as activities as Administrative Agent.  The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non-appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents.

Section 8.10   Other Agents .  Each Lender hereby acknowledges that no syndication agent, documentation agent or any other Lender designated as any other type of agent (other than administrative agent) on the signature pages of the Olin Credit Agreement or the Spinco Credit Agreement has any liability hereunder other than in its capacity as a Lender.

ARTICLE IX

SUCCESSORS, ASSIGNS AND PARTICIPATIONS

Section 9.01   Binding Effect .  This Agreement shall become effective when it shall have been executed by the parties hereto and thereafter shall be binding upon and inure to the benefit of the Borrowers, the Administrative Agent and each Lender and their respective successors and assigns, except that no Borrower shall have the right to assign its rights hereunder or any interest herein without the prior written consent of the Lenders.

Section 9.02   Assignments .

(a)              Each Lender may, upon at least 15 Business Days’ notice to the Company, the Administrative Agent and (in the case of an assignment of Revolving Commitments) the Issuing Banks, assign to one or more banks or other entities all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment(s), the Advances owing to it and the Note or Notes held by); provided that

(i)              prior written consent (such consent not to be unreasonably withheld or delayed) of the following shall be required:

(x)              the Company; provided that no such consent is required if an Event of Default under Section 6.01(a) or (e) has occurred or is continuing or for an assignment to a Lender, an Affiliate of a Lender or an Approved Fund; provided   further that the Company shall be deemed to have consented to any assignment unless it shall object thereto by written notice to the Administrative Agent within 15 Business Days after having received notice thereof;
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(y)              the Administrative Agent; provided that no such consent is required for an assignment of a Term Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and

(z)              each Issuing Bank, in the case of any assignment of all or a portion of a Revolving Commitment;

(ii)              parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Assumption, together with any Note or Notes subject to such assignment and a processing and recordation fee of US$3,500 payable by the parties to each such assignment;

(iii)              each such assignment shall be only to an Eligible Assignee; and

(iv)              except in the case of an assignment to a Lender or an Affiliate of a Lender, the amount of the Term Loan or Revolving Commitment of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Assumption with respect to such assignment) shall in no event be less than US$5,000,000, unless otherwise agreed by the Company and the Administrative Agent.

Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Assumption, (A) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Assumption, have the rights and obligations of a Lender hereunder and (B) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Assumption, relinquish its rights (other than its rights under Sections 2.07 , 2.10 , 2.14 , 10.04 and 10.06 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations (other than those provided in Section 10.12 ) under this Agreement (and, in the case of an Assignment and Assumption covering all or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto).

(b)              By executing and delivering an Assignment and Assumption, the Lender assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Assumption, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Borrower or the performance or observance by any Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Assumption; (iv) such assignee will, independently and without reliance upon the Administrative Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender; (vi) such assignee confirms that it is an Eligible Assignee; and (vii) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement as are delegated to the Administrative Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto.
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(c)              Upon its receipt of an Assignment and Assumption executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, together with any Revolving Note or Notes subject to such assignment and the fee referred to in clause (a)(ii) above, the Administrative Agent shall (subject to any consents to such assignment required pursuant to the terms of this Agreement), if such Assignment and Assumption has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Assumption, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Company.

(d)              The Administrative Agent, acting solely for this purpose as a non-fiduciary agent of the Borrowers, shall maintain, at its address set forth on Schedule 10.02 , a copy of each Assignment and Assumption delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Commitment(s) of, and principal amount (and stated interest) of the Advances owing to, each Lender from time to time (the “ Register ”).  The entries in the Register shall be conclusive and binding for all purposes, absent demonstrable error, provided , that the failure of the Administrative Agent to make an entry, or any finding that an entry is incorrect, in the Register shall not limit or otherwise affect the obligations of the Borrowers under this Agreement and the Borrowers, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement.  The Register shall be available for inspection by any Borrower or any Lender (but only to the extent of entries in the Register that are applicable to such Lender) at any reasonable time and from time to time upon reasonable prior notice.

(e)              Each Lender may assign to one or more banks or other entities any Bid Note or Bid Notes held by it.

(f)              Any Lender may pledge all or a portion of its Advances to any Federal Reserve Bank as collateral security pursuant to Regulation A of the Board of Governors of the Federal Reserve System and any Operating Circular issued by such Federal Revenue Bank.  No such assignment shall release the assigning Lender from its obligations under the Agreement.

(g)              Each Issuing Bank may, upon at least 10 Business Days’ notice to the Company, assign to any other Lender all of its rights and obligations under the undrawn portion of its Letter of Credit Commitment at any time; provided , however , that (i) if prior to the expiring of the 10 Business Days’ notice referred to above, the Company notifies the assignor Issuing Bank that such assignee is, in its sole discretion, not acceptable to it, such assignor Issuing Bank shall not make such assignment, (ii) the amount of the Letter of Credit Commitment of the assigning Issuing Bank being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than US$10,000,000 or an integral multiple of US$1,000,000 in excess thereof, and (iii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of US$3,500.

Section 9.03   Participations .

(a)              Each Lender may sell (other than to the Company, any Subsidiary of the Company or any natural Person) participations to one or more banks or other entities (each, a “ Participant ”) in or to all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment(s), and the Advances owing to it and the Note or Notes held by it); provided , however , that (i) such Lender’s obligations under this Agreement (including its Commitment(s) to the Borrowers hereunder) shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender shall remain the holder of any such Note for all purposes of this Agreement, (iv) each Borrower and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (v) such participation is not prohibited by applicable law.  Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Person acquiring such participation, agree to any amendment, modification or waiver described in clause (a), (b) or (c) of the proviso to Section 10.01 that directly affects such Person. The Borrowers agree that each Participant shall be entitled to the benefits of Sections 2.10 and 2.14 (subject to the requirements and limitations therein, including the requirements under Section 2.14(g) (it being understood that the documentation required under Section 2.14(g) shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 9.02 ; provided that such Participant (i) agrees to be subject to the provisions of Sections 2.10 and 2.14 as if it were an assignee under Section 9.02 and (ii) shall not be entitled to receive any greater payment under Sections 2.10 or 2.14, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from an adoption of or any Change in Law or compliance by any Lender with any request or directive (whether or not having the force of law) from any central bank or other Governmental Authority made subsequent to the Effective Date that occurs after the Participant acquired the applicable participation.  To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.05 as though it were a Lender, provided such Participant shall be subject to Section 2.13 as though it were a Lender.
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(b)              Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrowers, maintain a register on which it enters the name and address of each Participant and the principal amounts of (and stated interest on) each Participant’s interest in the Advances or other obligations under the Loan Documents (the “ Participant Register ”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations.  The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.  For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.

Section 9.04   Pledge .  Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank, and this Section shall not apply to any such pledge or assignment of a security interest; provided that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.  Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in this Section 9.04 .
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ARTICLE X

MISCELLANEOUS

Section 10.01    Amendments, Etc.   No amendment or waiver of any provision of this Agreement or the Notes, nor consent to any departure by any Borrower therefrom, shall in any event be effective unless the same shall be in writing and signed by the Majority Lenders, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided , however , that no amendment, waiver or consent shall: (a) increase or extend the Commitment(s) of any Lender or subject any Lender to any additional obligations without the written consent of such Lender, (b) reduce the principal of, or interest (other than any default interest) on, any Term Loan Note, Revolving Note, Term Loan, Revolving Advance, or any fee or other amount payable hereunder without the written consent of each Lender affected thereby, (c) postpone any date fixed for any payment of principal of, or interest on, the Term Loan Notes, Revolving Notes, Term Loans, Revolving Advances, or any fees or other amounts payable hereunder without the written consent of each Lender affected thereby, (d) change the definition of “Majority Lenders” or the number of Lenders or percentage in interests of Lenders which shall be required for the Lenders or any of them to take any action hereunder without the written consent of all the Lenders, (e) (i) release the Company from its obligations under Article VII without the written consent of all of the Lenders or (ii) release the Spinco Borrower from its obligations under Article VII without the written consent of all of the Revolving Lenders (and, with respect to any Incremental Term Loans for which the Company is the Borrower thereof, the Lenders in respect of such Incremental Term Loans) or (f) amend this Section 10.01 without the written consent of all the Lenders and provided   further that no amendment, waiver or consent shall, unless in writing and signed by the Majority Facility Lenders in respect of the applicable Facility in addition to the Lenders required above to take such action, adversely affect the rights of the Lenders of such Facility in respect of payments in a manner different than such amendment, waiver or consent affects the rights of Lenders of any other Facility in respect of payments and provided   further that no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders required above to take such action, affect the rights or duties of the Administrative Agent under this Agreement or any Note; and provided   further that no amendment, waiver or consent shall, unless in writing and signed by the affected Issuing Bank in addition to the Lenders required above to take such action, affect the rights or obligations of such Issuing Bank under this Agreement.  Notwithstanding anything herein to the contrary, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that a Defaulting Lender shall retain its voting rights in respect of matters set forth in clauses (a) and (b) above.

Notwithstanding the foregoing, this Agreement may be amended in form reasonably satisfactory to the Administrative Agent with the written consent of:

(i)              the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing, replacement or modification of all or any portion of the outstanding Term Loans (“ Replaced Term Loans ”) with a replacement term loan hereunder (“ Replacement Term Loans ”); provided , that (w) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Replaced Term Loans plus the reasonable costs, expenses, accrued interest or premiums in connection with such refinancing, replacement or modification, (x) the terms of such Replacement Term Loans (excluding pricing, fees, rate floors and optional prepayment or redemption terms) are no more favorable to the lenders providing such Replacement Term Loans than those applicable to the Replaced Term Loans (other than any covenants or other provisions applicable only to periods after the latest Termination Date in effect immediately prior to the incurrence of such Replacement Term Loans), (y) the maturity date of such Replacement Term Loans shall not be earlier than the maturity date of the Replaced Term Loans and (z) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Replaced Term Loans at the time of such refinancing; and
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(ii)              the Company and the Lenders providing the relevant Replacement Revolving Commitments (as defined below) to permit the refinancing, replacement or modification of all outstanding Revolving Commitments (“ Replaced Revolving Commitments ”) with a replacement revolving facility hereunder (“ Replacement Revolving Commitments ”), provided that (w) the aggregate amount of such Replacement Revolving Commitments shall not exceed the aggregate principal amount of the Replaced Revolving Commitments plus the reasonable costs, expenses, accrued interest or premiums in connection with such refinancing, replacement or modification, (x) the terms of such Replacement Revolving Commitments (excluding pricing, fees, rate floors and optional prepayment or redemption terms) are no more favorable to the lenders providing such Replacement Revolving Commitments than those applicable to the Replaced Revolving Commitments (other than any covenants or other provisions applicable only to periods after the latest Termination Date in effect immediately prior to the incurrence of such Replacement Revolving Commitments), (y) the termination date of such Replacement Revolving Commitments shall not be earlier than the termination date of the Replaced Revolving Commitments and (z) the Administrative Agent and each Issuing Bank shall have consented (such consent not to be unreasonably withheld) to the Lenders in respect of the Replacement Revolving Commitments.

Each of the parties hereto hereby agrees that this Agreement and the other Loan Documents may be amended to include Replacement Term Loans or Replacement Revolving Commitments without the consent of any other Lenders, to the extent necessary to (1) reflect the terms of such Replacement Term Loans or Replacement Revolving Commitments, as applicable, incurred pursuant to the foregoing clauses (i) or (ii) and (2) effect such other amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of the immediately preceding paragraph.

Furthermore, notwithstanding the foregoing, (i) the Administrative Agent, with the consent of the Company, may amend, modify or supplement any Loan Document without the consent of any Lender or the Majority Lenders in order to correct, amend or cure any ambiguity, inconsistency or defect or correct any typographical error or other manifest error in any Loan Document and (ii) the Administrative Agent, with the consent of the Company, may amend, modify or supplement Article II as contemplated by Section 10.17(c).

Section 10.02   Notices, Effectiveness, Electronic Communication .

(a)              All notices and other communications provided for hereunder shall be either (i) in writing (including telecopy communication) and mailed, telecopied or delivered or (ii) by electronic communication as and to the extent set forth in Section 10.02(b) and in the proviso to this Section 10.02(a) , and shall be delivered if to a Borrower, at the Company’s address specified on Schedule 10.02 ; if to any other Lender, at its Domestic Lending Office specified in its Administrative Questionnaire or in the Assignment and Assumption pursuant to which it became a Lender; and if to the Administrative Agent, at its address specified on Schedule 10.02 ; or, as to any Borrower or the Administrative Agent, at such other address as shall be designated by such party in a written notice to the other parties and, as to each other party, at such other address as shall be designated by such party in a written notice to the Borrowers and the Administrative Agent, provided that materials required to be delivered pursuant to Section 5.01(i)(i) , (ii) , (iv) and (v) may be delivered to the Administrative Agent as specified in Section 10.02(b) or as otherwise specified to the Borrowers by the Administrative Agent.  All such notices and communications shall, when mailed or telecopied, be effective only when received by the relevant party.  Delivery by telecopier of an executed counterpart of any amendment or waiver of any provision of this Agreement or the Notes or of any Exhibit hereto to be executed and delivered hereunder shall be effective as delivery of a manually executed counterpart thereof.
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Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices sent by facsimile shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next business day for the recipient).  Notices delivered through electronic communications to the extent provided in paragraph (b) below, shall be effective as provided in said paragraph (b).

In addition, the Canadian Borrower hereby irrevocably designates the Company, as the designee, appointee and agent of the Canadian Borrower to receive, for and on behalf of the Canadian Borrower, service of process in such jurisdiction in any legal action or proceeding with respect hereto.

(b)              Electronic Communications .  Notices and other communications to the Lenders and Issuing Banks hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent, provided that the foregoing shall not apply to notices to any Lender or Issuing Bank pursuant to Article II if such Lender or the Issuing Bank, as applicable, has notified the Administrative Agent that it is incapable of receiving notices under such Article by electronic communication.  The Administrative Agent or the Borrowers may, in their discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it, provided that approval of such procedures may be limited to particular notices or communications.  Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor; provided that, for both clauses (i) and (ii) above, if such notice, e-mail or other communication is not sent during the normal business hours of the recipient, such notice, e-mail or other communication shall be deemed to have been sent at the opening of business on the next business day for the recipient.

(c)              Administrative Agent’s Office .  The Administrative Agent hereby designates its office located at the address set forth on Schedule 10.02 , or any subsequent office which shall have been specified for such purpose by written notice to the Borrowers and Lenders, as the Administrative Agent’s office referred to herein, to which payments due are to be made and at which Advances will be disbursed.

(d)              Platform .  So long as Wells Fargo or any of its Affiliates is the Administrative Agent, materials required to be delivered pursuant to Section 5.01(i)(i) , (ii) , (iv) and (v) may be delivered to the Administrative Agent in an electronic medium in a format acceptable to the Administrative Agent and the Lenders by e-mail at the addresses set forth on Schedule 10.02 .  Each Borrower agrees that the Administrative Agent may, but is not obligated to, make such materials, as well as any other written information, documents, instruments and other material relating to the Company, any of its Subsidiaries or any other materials or matters relating to this Agreement, the Notes or any of the transactions contemplated hereby (collectively, the “ Communications ”) available to the Lenders by posting such notices on Intralinks, SyndTrak or a substantially similar electronic system (the “ Platform ”).  The Company acknowledges that (i) the distribution of material through an electronic medium is not necessarily secure and that there are confidentiality and other risks associated with such distribution, (ii) the Platform is provided “as is” and “as available” and (iii) neither the Administrative Agent nor any of its Related Parties warrants the accuracy, adequacy or completeness of the Borrower Materials, the Communications or the Platform and each expressly disclaims liability for errors or omissions in the Borrower Materials, the Communications or the Platform.  No warranty of any kind, express, implied or statutory, including any warranty of merchantability, fitness for a particular purpose, non-infringement of third party rights or freedom from viruses or other code defects, is made by any Agent Party in connection with the Borrower Materials or the Platform.  In no event shall the Administrative Agent or any of its Related Parties (collectively, the “ Agent Parties ”) have any liability to any Borrower, any Lender or any other Person or entity for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of any Borrower’s or the Administrative Agent’s transmission of communications through the Internet (including the Platform), except to the extent that such losses, claims, damages, liabilities or expenses are determined by a court of competent jurisdiction by final and non-appealable judgment to have resulted from the gross negligence or willful misconduct of such Agent Party; provided that in no event shall any Agent Party have any liability to any Borrower, any Lender, the Issuing Banks or any other Person for indirect, special, incidental, consequential or punitive damages, losses or expenses (as opposed to actual damages, losses or expenses).  “ Borrower Materials ” mean, collectively, any notice, demand, communication, information, document or other material provided by or on behalf of the Borrowers pursuant to any Loan Document or the transactions contemplated therein which is distributed to the Administrative Agent, any Lender or any Issuing Bank by means of electronic communications pursuant to this Section, including through the Platform.
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Section 10.03    No Waiver; Remedies .  No failure on the part of any Lender or the Administrative Agent to exercise, and no delay in exercising, any right hereunder or under any Note shall operate as a waiver thereof; nor shall any single or partial exercise of any such right preclude any other or further exercise thereof or the exercise of any other right.  The remedies herein provided are cumulative and not exclusive of any remedies provided by law.

Section 10.04   Costs and Expenses; Damage Waiver .

(a)              The Company shall pay (i) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the Arrangers and their respective Affiliates in connection with (x) the structuring, arrangement and syndication of the Commitments (including the reasonable and documented fees, charges and disbursements of one outside counsel for the Administrative Agent, the Arrangers and their respective Affiliates and, if necessary, one local counsel in each appropriate jurisdiction) and (y) the preparation, negotiation, execution, delivery and administration of this Agreement and the other Loan Documents or any amendments, modifications or waivers of the provisions hereof or thereof, whether or not the transactions contemplated hereby or thereby shall be consummated (including the reasonable and documented fees, charges and disbursements of one outside counsel for the Administrative Agent, the Arrangers and their respective Affiliates), (ii) all reasonable out-of-pocket expenses incurred by the Issuing Banks in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all out-of-pocket expenses incurred by the Administrative Agent, any Lender or the Issuing Banks (including the reasonable fees, charges and disbursements of any outside counsel for the Administrative Agent, any Lender or the Issuing Banks), in connection with the enforcement of its rights in connection with this Agreement and the other Loan Documents.

(b)              If any payment of principal of any Eurodollar Rate Advance is made by any Borrower to or for the account of a Lender other than on the last day of the Interest Period for such Advance, as a result of a payment pursuant to Section 2.09(b) , acceleration of the maturity of the Notes pursuant to Section 6.01 or for any other reason (including as a result of the replacement of such Lender in accordance with Section 2.04(c) or Section 2.17(b) ), such Borrower shall, upon demand by such Lender (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for the account of such Lender any amounts required to compensate such Lender for any additional losses, costs or expenses which it may reasonably incur as a result of such payment, including any loss (excluding loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any Lender to fund or maintain such Advance.  Each Lender demanding payment of such amount shall provide, at the time of making such demand, the applicable Borrower and the Administrative Agent with reasonable details, including the basis for the calculation thereof, of such increase, provided that, in the absence of manifest error, the amount so notified shall be conclusive and binding upon such Borrower.
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(c)              Each party’s obligations under this Section shall survive the termination of the Loan Documents and payment of the obligations hereunder.

Section 10.05    Right of Set-off .  Upon (a) the occurrence and during the continuance of any Event of Default and (b) the making of the request or the granting of the consent specified by Section 6.01 to authorize the Agent to declare the Notes due and payable pursuant to the provisions of Section 6.01 , each Lender is hereby authorized at any time and from time to time, to the fullest extent permitted by applicable law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other indebtedness at any time owing by such Lender to or for the credit or the account of any Borrower against any and all of the obligations of such Borrower now or hereafter existing under this Agreement and the other Loan Documents whether or not such Lender shall have made any demand under this Agreement or the Note held by such Lender and although such obligations may be unmatured.  Each Lender agrees promptly to notify the applicable Borrower after any such set-off and application, provided that the failure to give such notice shall not affect the validity of such set-off and application.  The rights of each Lender under this Section are in addition to other rights and remedies (including other rights of set-off) that such Lender may have.

Section 10.06   Indemnification by Company .  The Company agrees to indemnify and hold harmless the Administrative Agent, the Arrangers, the Issuing Banks, the Lenders and the respective affiliates of the foregoing and each of their respective Related Parties (each, an “ Indemnified Party ”) from and against any and all claims, damages, liabilities, obligations, losses, penalties, actions, judgments, suits, costs and reasonable and documented out-of-pocket expenses and disbursements (including reasonable fees and disbursements of one outside counsel for all Indemnified Parties, taken as a whole, and, if necessary, of a single firm of local counsel in each appropriate jurisdiction (which may include a single firm of special counsel acting in multiple jurisdictions) for all such Indemnified Parties, taken as a whole (and, in the case of an actual or perceived conflict of interest where the Indemnified Party affected by such conflict informs the Company of such conflict and thereafter retains its own counsel, of another firm of counsel for such affected Indemnified Party and, if necessary, of a single firm of local counsel in each appropriate jurisdiction (which may include a single firm of special counsel in multiple jurisdictions) for such affected Indemnified Party) of any kind or nature whatsoever (“ Claims ”) which may be imposed on, incurred by or asserted against such Indemnified Party in connection with or arising out of any investigation, litigation or proceeding (including any threatened investigation, litigation or proceeding or preparation of a defense in connection therewith) related to the Notes, this Agreement, any of the transactions contemplated herein or the actual or proposed use of the proceeds of the Advances; provided that the foregoing indemnity shall not apply to the Claims of any Indemnified Party to the extent such Claims (i) are found in a final and non-appealable judgment of a court of competent jurisdiction to have resulted from the willful misconduct, bad faith or gross negligence of such Indemnified Party, (ii) result from a claim brought by the Company or any of its Subsidiaries against such Indemnified Party for material breach of such Indemnified Party’s obligations under this Agreement if the Company or such Subsidiary has obtained a final and non-appealable judgment in its or its Subsidiary’s favor on such claim as determined by a court of competent jurisdiction or (iii) result from a proceeding that does not involve an act or omission by the Company or any of its Affiliates and that is brought by an Indemnified Party against any other Indemnified Party (other than claims against any arranger, bookrunner or agent in its capacity or in fulfilling its roles as an arranger, bookrunner or agent hereunder or any similar role with respect to this Agreement or any Commitments).  In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 10.06 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by the Company, its directors, equityholders or creditors or an Indemnified Party or any other Person, whether or not any Indemnified Party is otherwise a party thereto and whether or not the transactions contemplated hereby are consummated.  Each Borrower also agrees not to assert any claim for special, indirect, consequential or punitive damages against the Administrative Agent, any Lender, any of their Affiliates, or any of their respective directors, officers, employees, attorneys and agents, on any theory of liability, arising out of or otherwise relating to this Agreement or any of the other Loan Documents or any agreement or instrument contemplated hereby, any of the transactions contemplated herein or the actual or proposed use of the proceeds of the Advances or Letters of Credit.
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Section 10.07   Governing Law .  This Agreement and the other Loan Documents and any claim, controversy, dispute or cause of action (whether in contract or tort or otherwise) based upon, arising out of or relating to this Agreement or any other Loan Document (except, as to any other Loan Document, as expressly set forth therein) and the transactions contemplated hereby and thereby shall be governed by, and construed in accordance with, the law of the State of New York.

Section 10.08   Execution in Counterparts; Integration; Effectiveness .  This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original, and all of which taken together shall constitute one and the same agreement.  This Agreement and the other Loan Documents, and any separate letter agreements with respect to fees payable to the Administrative Agent, the Issuing Banks and/or the Arrangers, constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof.  Delivery of an executed counterpart of a signature page to this Agreement by facsimile or in electronic (i.e., “pdf” or “tif”) format shall be effective as delivery of a manually executed counterpart of this Agreement.

Section 10.09   Special Prepayment Right .  (a)  In the event that a Change of Control Date shall occur, the Company will, within 10 days after such Change of Control Date, give the Administrative Agent written notice thereof and describe in reasonable detail the facts and circumstances giving rise thereto, and the applicable Borrower will prepay, if any Lender shall so request, all of the Advances from such Lender plus interest accrued to the date of prepayment and any other fees and amounts as may then be payable by such Borrower to such Lender under this Agreement.  Said request (the “ Prepayment Notice ”) shall be made by a Lender in writing not later than 45 days after the Change of Control Date and shall specify (i) the date (the “ Special Prepayment Date ”) upon which each Borrower shall prepay the Advances made to it, which date shall be not less than 15 days nor more than 45 days from the date of the Prepayment Notice and (ii) the amount of the Advances to be prepaid.  In the event of such request, the Commitment(s) of such Lender to make Advances shall forthwith terminate.

(b)              On the Special Prepayment Date, each Borrower shall prepay all of the Advances of such Lender made to such Borrower plus interest accrued thereon to the Special Prepayment Date and such other fees and amounts as may then be payable by Borrower under this Agreement.  Payment shall be made as provided in this Agreement.

(c)              For the purposes of this Section 10.09 :
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(i)              the term “ Change of Control Date ” shall mean (A) the first day on which any person, or group of related persons, has beneficial ownership of more than 33 1/3% of the outstanding voting stock of the Company or (B) the date immediately following the first date on which the members of the Board of Directors of the Company (the “ Board ”) at the commencement of any period of 730 consecutive days (together with any other Directors whose appointment or election by the Board or whose nomination for election by the stockholders of the Company was approved by a vote of at least a majority of the Directors then in office who either were Directors at the beginning of such period or whose appointment or election or nomination for election was previously so approved) shall cease to constitute a majority of the Board at the end of such period; provided , however , that a Change of Control Date shall not be deemed to have occurred under clause (A) hereof if (x) the Company shall have merged or disposed of a portion of its assets in compliance with the requirements of subsection 5.02(c) hereof within 10 days after the acquisition of such beneficial ownership shall have occurred and (y) no person or group of related persons shall have beneficial ownership of more than 33 1/3% of the outstanding voting stock of the Company after such merger or disposition, and

(ii)              the term “ voting stock ” shall mean stock of any class or classes (however designated) having ordinary voting power for the election of a majority of the directors of the Company other than stock having such power only by reason of a contingency.

Section 10.10        Jurisdiction, Etc.

(a)              Each Borrower hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of any New York State court or federal court of the United States of America sitting in New York City, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement or any of the other Loan Documents, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally submits to the jurisdiction of such courts and agrees that all claims in respect of any such action or proceeding may be heard and determined in any such New York State court or, to the extent permitted by law, in such federal court.  Each Borrower hereby further irrevocably consents to the service of process in any action or proceeding in such courts by the mailing thereof by any parties hereto by registered or certified mail, postage prepaid, to such Borrower at the address of the Company specified pursuant to Section 10.02 .  Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.  Nothing in this Agreement shall affect any right that the Administrative Agent or the Lenders may otherwise have to bring any action or proceeding relating to this Agreement or any of the other Loan Documents in the courts of any jurisdiction.

(b)              Each of the parties hereto irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection that it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or any of the other Loan Documents in any New York State or federal court sitting in New York City.  Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.

Section 10.11     N o Liability of the Issuing Banks .  The Company assumes all risks of the acts or omissions of any beneficiary or transferee of any Letter of Credit with respect to its use of such Letter of Credit.  Neither any Issuing Bank nor any of its officers or directors shall be liable or responsible for: (a) the use that may be made of any Letter of Credit or any acts or omissions of any beneficiary or transferee in connection therewith; (b) the validity, sufficiency or genuineness of documents, or of any endorsement thereon, even if such documents should prove to be in any or all respects invalid, insufficient, fraudulent or forged; (c) payment by an Issuing Bank against presentation of documents that do not comply with the terms of a Letter of Credit, including failure of any documents to bear any reference or adequate reference to the Letter of Credit; or (d) any other circumstances whatsoever in making or failing to make payment under any Letter of Credit, except that the Company shall have a claim against an Issuing Bank, and such Issuing Bank shall be liable to the Company, to the extent of any direct, but not consequential, damages suffered by the Company that were caused by (i) such Issuing Bank’s willful misconduct or gross negligence in determining whether documents presented under any Letter of Credit comply with the terms of the Letter of Credit or (ii) such Issuing Bank’s willful failure to make lawful payment under a Letter of Credit after the presentation to it of a draft and certificates strictly complying with the terms and conditions of the Letter of Credit.  In furtherance and not in limitation of the foregoing, each Issuing Bank may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary.
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Section 10.12     Confidentiality .  Each of the Administrative Agent and the Lenders expressly agrees, for the benefit of the Company and its Subsidiaries, to maintain the confidentiality of the Confidential Information, except that Confidential Information may be disclosed (a) to its Affiliates and their Related Parties (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Confidential Information and instructed to keep such Confidential Information confidential), (b) to any rating agency, or regulatory or similar authority having, or purporting to have, jurisdiction over such Person or its Related Parties (including any self-regulatory authority, such as the National Association of Insurance Commissioners, or in connection with any regulatory examination of the Administrative Agent or any Lender or in accordance with the Administrative Agent’s or any Lender’s regulatory compliance policy if the Administrative Agent or such Lender deems disclosure necessary for the mitigation of claims by those authorities against the Administrative Agent or such Lender or any of its Subsidiaries or Affiliates), (c) to the extent required by applicable laws or regulations or by any subpoena or similar legal process, (d) to any other party to this Agreement, (e) in connection with the exercise of any remedies hereunder or any suit, action or proceeding relating to this Agreement or the enforcement of rights hereunder, (f) subject to an express agreement for the benefit of the Company and its Subsidiaries containing provisions substantially the same as those of this Section, to any Eligible Assignee of or participant in, or any prospective assignee of or participant in, any of its rights or obligations under this Agreement, (g) with the consent of the Company, (h) on a confidential basis to (i) any rating agency in connection with rating the Borrowers or their Subsidiaries or this Agreement or (ii) the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers, (i) to Gold Sheets and other similar bank trade publications, such information to consist of deal terms and other information customarily found in such publications, (j) to data service providers, including league table providers, that serve the lending industry, such information to consist of information customarily provided to such data service providers or (k) to the extent such Confidential Information (i) becomes publicly available other than as a result of a breach of this Section or (ii) becomes available to the Administrative Agent or any Lender on a nonconfidential basis from a source other than the Company or any of its Subsidiaries.  For the purposes of this Section, “ Confidential Information ” means all information, including material nonpublic information with the meaning of Regulation FD promulgated by the SEC (“ Regulation FD ”), received from the Company or its Subsidiaries relating to such entities or their respective businesses, other than any such information that is available to the Administrative Agent or any Lender on a nonconfidential basis prior to disclosure by such entities; provided , that such information is clearly identified at the time of delivery as confidential.  Any Person required to maintain the confidentiality of Confidential Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such information as such Person customarily accords to its own confidential information; provided , however , that with respect to disclosures pursuant to clauses (b) and (c) of this Section, unless prohibited by law or applicable court order, each Lender and the Administrative Agent shall attempt to notify the Company of any request by any governmental agency or representative thereof or other Person for disclosure of Confidential Information after receipt of such request, and if reasonable, practicable and permissible, before disclosure of such Confidential Information.  It is understood and agreed that the Company, its Subsidiaries and their respective Affiliates may rely upon this Section for any purpose, including to comply with Regulation FD.
93

The Administrative Agent agrees to keep confidential the Submitted Reference Bank Rates to be used in the calculation of the Reference Bank Rate; provided that the Submitted Reference Bank Rates may be shared with the Borrowers and any of their respective employees, directors, agents, attorneys, accountants and other professional advisors or those of any of its affiliates that have a commercially reasonable business need to know such rates ( provided that, prior to receipt of such rates, any recipient thereof (other than the Borrowers) shall (i) certify to the Administrative Agent that it is not an individual who is formally designated as being involved in the ICE LIBOR submission process and (ii) shall agree to comply with the provisions of this paragraph as if it were the Administrative Agent). Each of the Borrowers hereby represents and warrants, as of the Closing Date and each date on which it receives Submitted Reference Bank Rates, that it is not an individual who is formally designated as being involved in the ICE LIBOR submission process, and agrees to comply with the provisions of this paragraph as if it were the Administrative Agent. For the avoidance of doubt, the Reference Bank Rate shall be disclosed to Lenders in accordance with Section 2.08(b) .

Section 10.13     Patriot Act, Etc.   Each Lender hereby notifies each Borrower that, pursuant to the requirements of the USA Patriot Act (Title III of Pub.  L.  107-56 (signed into law October 26, 2001)) (the “ Act ”) and the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada), it is required to obtain, verify and record information that identifies each borrower, guarantor or grantor (the “ Loan Parties ”), which information includes the name and address of each Loan Party and other information that will allow such Lender to identify such Loan Party in accordance with the Act.

Section 10.14     Judgment .  (a)  If for the purposes of obtaining judgment in any court it is necessary to convert a sum due hereunder in one currency into another currency, the parties hereto agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures the Administrative Agent could purchase the first currency with such other currency at Citibank’s principal office in London at 11:00 A.M. (London time) on the Business Day preceding that on which final judgment is given.

(b)              The obligation of any Borrower in respect of any sum due from it in any currency (the “ Primary Currency ”) to any Lender or the Administrative Agent hereunder shall, notwithstanding any judgment in any other currency, be discharged only to the extent that on the Business Day following receipt by such Lender or the Administrative Agent (as the case may be), of any sum adjudged to be so due in such other currency, such Lender or the Administrative Agent (as the case may be) may in accordance with normal banking procedures purchase the applicable Primary Currency with such other currency; if the amount of the applicable Primary Currency so purchased is less than such sum due to such Lender or the Administrative Agent (as the case may be) in the applicable Primary Currency, each Borrower agrees, as a separate obligation and notwithstanding any such judgment, to indemnify such Lender or the Administrative Agent (as the case may be) against such loss, and if the amount of the applicable Primary Currency so purchased exceeds such sum due to any Lender or the Administrative Agent (as the case may be) in the applicable Primary Currency, such Lender or the Administrative Agent (as the case may be) agrees to remit to such Borrower such excess.
94

Section 10.15    Waiver of Jury Trial .  Each of the Borrowers, the Administrative Agent and the Lenders hereby irrevocably waives all right to trial by jury in any action, proceeding or counterclaim (whether based on contract, tort or otherwise) arising out of or relating to this Agreement or any of the other Loan Documents or the actions of the administrative Agent or any Lender in the negotiation, administration, performance or enforcement thereof.

Section 10.16      Acknowledgments .  Each of the Borrowers hereby acknowledges and agrees that (a) no fiduciary, advisory or agency relationship between the Borrowers and the Credit Parties is intended to be or has been created in respect of any of the transactions contemplated by this Agreement or the other Loan Documents, irrespective of whether the Credit Parties have advised or are advising the Borrowers on other matters, and the relationship between the Credit Parties, on the one hand, and the Borrowers, on the other hand, in connection herewith and therewith is solely that of creditor and debtor, (b) the Credit Parties, on the one hand, and the Borrowers, on the other hand, have an arm’s length business relationship that does not directly or indirectly give rise to, nor do the Borrowers rely on, any fiduciary duty to the Borrowers or their affiliates on the part of the Credit Parties, (c) the Borrowers are capable of evaluating and understanding, and the Borrowers understand and accept, the terms, risks and conditions of the transactions contemplated by this Agreement and the other Loan Documents, (d) the Borrowers have been advised that the Credit Parties are engaged in a broad range of transactions that may involve interests that differ from the Borrowers’ interests and that the Credit Parties have no obligation to disclose such interests and transactions to the Borrowers, (e) the Borrowers have consulted their own legal, accounting, regulatory and tax advisors to the extent the Borrowers have deemed appropriate in the negotiation, execution and delivery of this Agreement and the other Loan Documents, (f) each Credit Party has been, is, and will be acting solely as a principal and, except as otherwise expressly agreed in writing by it and the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for the Borrowers, any of their affiliates or any other Person, (g) none of the Credit Parties has any obligation to the Borrowers or their affiliates with respect to the transactions contemplated by this Agreement or the other Loan Documents except those obligations expressly set forth herein or therein or in any other express writing executed and delivered by such Credit Party and the Borrowers or any such affiliate and (h) no joint venture is created hereby or by the other Loan Documents or otherwise exists by virtue of the transactions contemplated hereby among the Credit Parties or among the Borrowers and the Credit Parties.

Section 10.17     Additional Borrowers .  (a) The Company may, with the prior consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) designate any Wholly Owned Subsidiary as a Borrower under the Revolving Credit Facility and upon the satisfaction of the conditions specified in Section 10.17(d), such Subsidiary shall for purposes hereunder be a party hereto as an Additional Borrower as fully as if it had executed and delivered this Agreement. The Administrative Agent shall notify the Revolving Lenders and Issuing Banks at least five Business Days prior to granting such request and, if any Revolving Lender or Issuing Bank notifies the Administrative Agent within five Business Days that it is not permitted by applicable law or any of its organizational policies to make Advances to, or participate in Letters of Credit for the account of (or, in the case of Issuing Banks, issue Letters of Credit for the account of), the relevant Subsidiary, shall withhold such consent or give such consent only upon effecting the changes to the provisions of this Agreement as are contemplated by Section 2.17(b) or Section 10.17(c) that will assure that such Revolving Lender is not required to make Revolving Advances to, or participate in Letters of Credit for the account of (or, in the case of Issuing Banks, issue Letters of Credit for the account of), such Subsidiary.

(b)              A Subsidiary (other than the Spinco Borrower) shall cease to be an Additional Borrower hereunder at such time as no Advances, fees or any other amounts due in connection therewith pursuant to the terms hereof shall be outstanding by such Subsidiary, no Letters of Credit issued for the account of such Subsidiary shall be outstanding and such Subsidiary and the Company shall have executed and delivered to the Administrative Agent a Borrowing Subsidiary Termination.
95

(c)              In order to accommodate (i) the addition of a Subsidiary as an Additional Borrower or (ii) extensions of credit to an Additional Borrower, in each case, where one or more Revolving Lenders or Issuing Banks are able and willing to lend Revolving Advances to, and participate in Letters of Credit issued for the account of (or, in the case of Issuing Banks, issue Letters of Credit for the account of), such Subsidiary, but other Revolving Lenders or Issuing Banks are not so able and willing, the Administrative Agent shall be permitted, with the consent of the Company, to effect such changes to the provisions of Article II as it reasonably believes are appropriate in order for such provisions to operate in a customary and usual manner for “multiple-currency” syndicated lending agreements to a corporation and certain of its subsidiaries, all with the intention of providing procedures for the Revolving Lenders and Issuing Banks who are so able and willing to extend credit to such Subsidiaries and for the other Revolving Lenders and Issuing Banks not to be required to do so.  Prior to effecting any such changes, the Administrative Agent shall give all Revolving Lenders and Issuing Banks at least five Business Days’ notice thereof and an opportunity to comment thereon.

(d)              The addition of any Subsidiary as an Additional Borrower hereunder is subject to satisfaction of the following conditions precedent:

(i)              the Administrative Agent shall have received all documentation and other information with respect to such Person required by regulatory authorities and requested by the Lenders (through the Administrative Agent) under applicable “know your customer” and anti-money laundering rules and regulations, including the Act;

(ii)              the Administrative Agent shall have received a Borrowing Subsidiary Agreement executed by such Subsidiary and the Company;

(iii)              the Administrative Agent shall have received an opinion of counsel of such Subsidiary reasonably acceptable to the Administrative Agent and covering such matters relating to the transactions contemplated hereby relating to such Subsidiary as the Administrative Agent may reasonably request;

(iv)              the Administrative Agent shall have received such documents and certificates as the Administrative Agent may reasonably request relating to the organization, existence and good standing of such Subsidiary, the authorization of the transactions contemplated hereby relating to such Subsidiary, all in form and substance reasonably satisfactory to the Administrative Agent, such Subsidiary shall be a Borrower and a party to this Agreement and any other legal matters relating to such Subsidiary, all in form and substance reasonably satisfactory to the Administrative Agent; and

(v)              unless otherwise agreed by the Administrative Agent, the following representations and warranties shall be true and correct on and as of such date:

(w)              subject to applicable law, the obligations of such Additional Borrower under this Agreement, when executed and delivered by such Additional Borrower, will rank at least pari passu with all unsecured Indebtedness of such Additional Borrower;

(x)              in the case of any Additional Borrower that is a Foreign Subsidiary, such Additional Borrower is subject to civil and commercial law with respect to its obligations under this Agreement and any Note, and the execution, delivery and performance by such Additional Borrower of this Agreement constitute and will constitute private and commercial acts and not public or governmental acts.  Neither such Additional Borrower nor any of its property, whether or not held for its own account, has any immunity (sovereign or other similar immunity) from any suit or proceeding, from jurisdiction of any court or from set-off or any legal process (whether service or notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or other similar immunity) under laws of the jurisdiction in which such Additional Borrower is organized and existing in respect of its obligations under this Agreement or any Note.  Such Additional Borrower has waived, and hereby does waive, every immunity (sovereign or otherwise) to which it or any of its properties would otherwise be entitled from any legal action, suit or proceeding, from jurisdiction of any court and from set-off or any legal process (whether service or notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) under the laws of the jurisdiction in which such Additional Borrower is organized and existing in respect of its obligations under this Agreement and any Note.  The waiver by such Additional Borrower described in the immediately preceding sentence is the legal, valid and binding obligation of such Additional Borrower, subject to customary qualifications and limitations;
96

(y)              in the case of any Additional Borrower that is a Foreign Subsidiary, this Agreement and each Note, if any, is in proper legal form under the law of the jurisdiction in which such Additional Borrower is organized and existing for the enforcement hereof or thereof against such Additional Borrower under the law of such jurisdiction, and to ensure the legality, validity, enforceability or admissibility in evidence of this Agreement and any such Note.  It is not necessary to ensure the legality, validity, enforceability or admissibility in evidence of this Agreement and any such Note that this Agreement, any Note or any other document be filed, registered or recorded with, or executed or notarized before, any court or other authority in the jurisdiction in which such Additional Borrower is organized and existing or that any registration charge or stamp or similar tax be paid on or in respect of this Agreement, any Note or any other document, except for any such filing, registration or recording, or execution or notarization, as has been made or is not required to be made until this Agreement, any Note or any other document is sought to be enforced and for any charge or tax as has been timely paid; and

(z)              in the case of any Additional Borrower that is a Foreign Subsidiary, the execution, delivery and performance by such Additional Borrower of this Agreement, any Note or the other Loan Documents is, under applicable foreign exchange control regulations of the jurisdiction in which such additional Borrower is organized and existing, not subject to any notification or authorization except (1) such as have been made or obtained or (2) such as cannot be made or obtained until a later date (provided any notification or authorization described in immediately preceding clause (2) shall be made or obtained as soon as is reasonably practicable).

[Last page of Agreement]


97
Exhibit 99.1
 
 
Investor Contact: Larry P. Kromidas
Email:  lpkromidas@olin.com
(314) 480-1452

  News
Olin Corporation, 190 Carondelet Plaza, Suite 1530, Clayton, MO 63105


FOR IMMEDIATE RELEASE


OLIN ANNOUNCES THE COMPLETION OF THE MERGER WITH
DOW’S CHLORINE PRODUCTS BUSINESSES
AND ELECTION OF NEW DIRECTORS


CLAYTON, MO, October 5, 2015 -  Olin Corporation (NYSE: OLN)  (“Olin”)   announced today the successful completion of the previously announced merger of The Dow Chemical Company’s (NYSE: DOW) (“Dow”) U.S. Chlor-Alkali and Vinyl, Global Chlorinated Organics and Global Epoxy businesses with Olin and the election by Olin’s board of directors of two new directors to serve on Olin’s board.  The two new directors were designated by Dow in connection with the Reverse Morris Trust transaction.

Joseph D. Rupp, Olin’s Chairman and Chief Executive Officer, said, “The complementary combination of Dow’s businesses with our business creates a world leader in chlorine-based products with significant global scale.  Olin now is the largest integrated chlor-alkali producer with top-tier low-cost facilities and has significantly diversified its product and geographic base.

“We’re pleased to have our two new directors who have extensive management and financial experience in the chemicals industry.  We look forward to their advice and counsel.”

William H. Weideman, 61, served as the Chief Financial Officer and Executive Vice President of Dow, a diversified chemical company, from March 2010 to January 2015.  Prior to that, he was appointed Vice President and Corporate Controller in 2006 and Interim Chief Financial Officer in November 2009.  During his 38 years at Dow, Mr. Weideman served in senior financial and management roles across Dow’s portfolio of businesses.  He serves on the board of directors of Sadara Chemical Company, a joint venture developed by the Saudi Arabian Oil Company and Dow, and on the board of trustees of Central Michigan University.  He has a bachelor’s degree in Business Administration and Accounting from Central Michigan University.
 

 
Carol A. Williams, 57, served as a special advisor to the Chief Executive Officer of Dow until early 2015.  Prior to her special advisor role, she served as Dow’s Executive Vice President of Manufacturing and Engineering, Supply Chain and Environmental, Health & Safety Operations.  During her 34 years at Dow, Ms. Williams assumed increasingly more significant management positions in research and development before becoming operations leader and then Vice President for the North American chlor-alkali assets business.  She serves on the board of directors of Owens-Illinois Inc., a manufacturing company specializing in container glass products, and on the board of trustees for Carnegie Mellon University.  Ms. Williams has a bachelor’s degree in Chemical Engineering from Carnegie Mellon University.

Olin Corporation is a leading vertically-integrated global manufacturer and distributor of chemical products and a leading U.S. manufacturer of ammunition.  The chemical products produced include chlorine and caustic soda, vinyls, epoxies, chlorinated organics, bleach and hydrochloric acid.  Winchester’s principal manufacturing facilities produce and distribute sporting ammunition, law enforcement ammunition, reloading components, small caliber military ammunition and components, and industrial cartridges.

Visit olin.com for more information on Olin.

2015 - 21
 
Exhibit 99.2
 
 
Investor Contact: Larry P. Kromidas
Email:  lpkromidas@olin.com
(314) 480-1452

  News
Olin Corporation, 190 Carondelet Plaza, Suite 1530, Clayton, MO 63105


FOR IMMEDIATE RELEASE


OLIN ANNOUNCES THE ELECTION OF FOUR NEW OFFICERS


CLAYTON, MO, October 5, 2015 -  Olin Corporation (NYSE: OLN)  (“Olin”)   announced today the successful completion of the previously announced merger of The Dow Chemical Company’s (NYSE: DOW) (“Dow”) U.S. Chlor-Alkali and Vinyl, Global Chlorinated Organics and Global Epoxy businesses with Olin and the election by Olin’s board of directors of four new officers.

Joseph D. Rupp, Olin’s Chairman and Chief Executive Officer, said, “ I want to welcome the four new officers and the talented business leaders, management teams and skillful employees of the businesses who will become part of the Olin family.  I also want to congratulate and thank all the employees from both companies who worked diligently to make this merger a success.”

James A. Varilek, 57, was elected Executive Vice President of Olin and President, Chlor Alkali Vinyls and Services.  Jim most recently served as Chief Operating Officer, Dow Chlorine Products; President, U.S. Chlor-Alkali & Vinyl.  In this role, Jim led the Chlor-Alkali and Vinyl Business and organizational readiness for the Dow Chlorine Products divestiture.  Jim holds a bachelor’s degree in Economics and a master’s degree in Business Administration from the University of Michigan.
 

 
Pat D. Dawson, 58, was elected Executive Vice President of Olin and President, Epoxy and International.  Pat most recently was Senior Vice President, Dow Epoxy and Corporate Project Development where he was responsible for leading the Global Epoxy Business and driving corporate projects.  Pat holds a bachelor’s degree in Agronomy and a master’s degree in Agricultural Economics/Management from Purdue University.

John M. Sampson, 54, was elected Vice President of Olin and Vice President, Manufacturing and Engineering, Chlor Alkali Vinyls, Epoxy and Global Chlorinated Organics.  John most recently served as Vice President, Dow Chlorine Products Operations where he led all operational aspects of the chlorine products business.  John holds a bachelor’s degree in Chemical Engineering from Louisiana State University.

Clive A. Grannum, 50, was elected Vice President of Olin and President, Global Chlorinated Organics.  Clive most recently served as the Business President, Global Chlorinated Organics at Dow where he led all aspects of the global business.  Clive holds a bachelor’s degree in Aerospace Engineering from Boston University and a master’s degree in Management from Yale University.

Olin Corporation is a leading vertically-integrated global manufacturer and distributor of chemical products and a leading U.S. manufacturer of ammunition.  The chemical products produced include chlorine and caustic soda, vinyls, epoxies, chlorinated organics, bleach and hydrochloric acid.  Winchester’s principal manufacturing facilities produce and distribute sporting ammunition, law enforcement ammunition, reloading components, small caliber military ammunition and components, and industrial cartridges.

Visit olin.com for more information on Olin.

2015 - 22
Exhibit 99.3
 
 
Unaudited pro forma condensed combined financial statements of
Olin and the Dow Chlorine Products Business

The following unaudited pro forma condensed combined financial statements present the combination of the historical financial statements of Olin and DCP, adjusted to give effect to: (1) the Merger and (2) the other Transactions.  Capitalized terms used herein are defined below under the caption “Helpful Definitions”.

The unaudited pro forma condensed combined statements of operations for the six months ended June 30, 2015 and the year ended December 31, 2014 combine the historical consolidated statement of operations of Olin and the historical combined statement of income (loss) for DCP, giving effect to the Merger and the other Transactions as if they had been consummated on January 1, 2014, the beginning of the earliest period presented. The unaudited pro forma condensed combined balance sheet combines the historical condensed consolidated balance sheet of Olin and the historical condensed combined balance sheet of DCP as of June 30, 2015, giving effect to the Merger and the other Transactions as if they had been consummated on June 30, 2015.

The unaudited pro forma condensed combined financial statements were prepared using the acquisition method of accounting with Olin considered the acquirer of DCP. Under the acquisition method of accounting, the purchase price is allocated to the underlying tangible and intangible assets acquired and liabilities assumed based on their respective fair values, with any excess purchase price allocated to goodwill. The pro forma purchase price allocation was based on a preliminary estimate of the fair values of the tangible and intangible assets and liabilities of DCP. In arriving at the estimated fair values, Olin has considered the preliminary appraisals of independent consultants which were based on a preliminary and limited review of the assets and liabilities related to DCP to be transferred to, or assumed by, Splitco in the Transactions. Now that the Transactions have closed, Olin will complete the purchase price allocation after considering the fair value of DCP’s assets and liabilities at the level of detail necessary to finalize the required purchase price allocation. The final purchase price allocation may be different than that reflected in the pro forma purchase price allocation presented herein, and this difference may be material.

The historical combined financial statements of DCP have been “carved-out” from TDCC’s consolidated financial statements and reflect assumptions and allocations made by TDCC. DCP’s historical combined financial statements include all revenues, costs, assets and liabilities that are directly attributable to DCP. In addition, certain expenses reflected in DCP’s combined financial statements are an allocation from TDCC. Such expenses include, but are not limited to, general corporate expenses related to finance, legal, information technology, human resources, ethics and compliance, shared services, employee benefits and incentive, insurance and stock-based compensation. The actual costs that may have been incurred if DCP had been a stand-alone company would depend on a number of factors, including the chosen organizational structure and strategic decisions made as to information technology and infrastructure requirements. As such, DCP’s combined financial statements do not necessarily reflect what DCP’s financial condition and results of operations would have been had DCP operated as a stand-alone company during the period or at the date presented.

The unaudited pro forma condensed combined financial statements do not reflect the costs of any integration activities or benefits that may result from realization of approximately $200 million of annualized cost synergies expected to be realized within three years following the consummation of the Transactions, or, if Olin is able to increase sales to new third-party customers and access new product markets as a result of the Transactions, the potential additional annualized synergies of up to $100 million that Olin estimates may potentially be achievable within three years from the consummation of the Transactions. Olin expects to incur significant one-time costs in connection with the Transactions, including approximately (1) $55 to $60 million during 2015 of advisory, legal, accounting, integration and other professional fees related to the Transactions, (2) $25 to $30 million of financing-related fees, (3) $50 million of costs associated with the change in control mandatory acceleration of expenses under deferred compensation plans as a result of the Transactions, (4) $100 to $150 million in transition-related costs during the first three years following the consummation of the Transactions, and (5) $200 million in incremental capital spending during the first three years following the consummation of the Transactions that Olin management believes is necessary to realize the anticipated synergies from the Transactions.
 
 
 

The unaudited pro forma adjustments are based upon current available information and assumptions that Olin believes to be reasonable. The pro forma adjustments and related assumptions are described in the accompanying notes presented on the following pages.

The unaudited pro forma condensed combined financial statements are for informational purposes only and are not intended to represent or to be indicative of the actual results of operations or financial position that the combined Olin and DCP would have reported had the Transactions been completed as of the dates set forth in the unaudited pro forma condensed combined financial statements and should not be taken as being indicative of Olin’s future consolidated results of operations or financial position. The actual results may differ significantly from those reflected in the unaudited pro forma condensed combined financial statements for a number of reasons, including, but not limited to, differences between the assumptions used to prepare the unaudited pro forma condensed combined financial statements and actual amounts. As a result, the pro forma combined information does not purport to be indicative of what the financial condition or results of operations would have been had the Transactions been completed on the applicable dates of the unaudited pro forma condensed combined financial statements.

The unaudited pro forma condensed combined financial statements, including the notes thereto, should be read in conjunction with:

●
the accompanying notes to the unaudited pro forma condensed combined financial statements;
   
●
Olin’s audited historical consolidated financial statements and related notes as of and for the year ended December 31, 2014, which are included in Olin’s Annual Report on Form 10-K for the fiscal year ended December 31, 2014 (filed with the SEC on February 25, 2015);
   
●
Olin’s unaudited historical consolidated financial statements and related notes as of and for the six months ended June 30, 2015, which are included in Olin’s Quarterly Report on Form 10-Q for the period ended June 30, 2015 (filed with the SEC on August 3, 2015);
   
●
DCP’s audited historical combined financial statements and related notes as of and for the year ended December 31, 2014, which are included in Olin’s Registration Statement on Form S-4 (Registration No. 333-203990) declared effective by the SEC on September 2, 2015; and
   
●
DCP’s unaudited historical combined financial statements and related notes as of and for the six months ended June 30, 2015, which are included in Olin’s Registration Statement on Form S-4 (Registration No. 333-203990) declared effective by the SEC on September 2, 2015.
 
 
2
 
 
Unaudited pro forma condensed combined balance sheet as of June 30, 2015
 
    Historical              
   
Olin
Corporation
   
Dow Chlorine
Products Business
   
Pro forma
adjustments
   
Note 3
   
Pro forma
condensed combined
 
 
 
(in millions)
 
Current assets
                   
Cash and cash equivalents
 
$
232
   
$
—
   
$
(257
)
    A  
$
(25
)
Receivables, net
   
321
     
332
     
45
      B    
698
 
Income taxes receivable
   
3
     
—
     
39
       D    
42
 
Inventories
   
222
     
325
     
68
      C    
615
 
Current deferred income taxes
   
50
     
23
     
(15
)
     D    
58
 
Restricted cash
   
—
     
26
     
—
             
26
 
Other current assets
   
16
     
—
     
—
             
16
 
Total current assets
   
844
     
706
     
(120
)
           
1,430
 
Property, plant and equipment, net
   
918
     
1,525
     
1,900
      E    
4,343
 
Intangibles, net
   
116
     
3
     
1,309
      F    
1,428
 
Deferred income taxes
   
13
     
1
     
(1
)
    D    
13
 
Other assets
   
63
     
15
     
29
      H    
107
 
Goodwill
   
747
     
56
     
864
      G    
1,667
 
Total assets
 
$
2,701
   
$
2,306
   
$
3,981
           
$
8,988
 
Current liabilities
                                       
Current installments of long-term debt
 
$
144
   
$
51
   
$
11
      H  
$
206
 
Accounts payable
   
149
     
372
     
(5
)
    I    
516
 
Income taxes payable
   
11
     
16
     
(16
)
    D    
11
 
Current deferred income taxes
   
—
     
—
     
23
      D    
23
 
Accrued liabilities
   
205
     
65
     
(58
)
    J    
212
 
Total current liabilities
   
509
     
504
     
(45
)
           
968
 
Long-term debt
   
528
     
528
     
2,433
      H     
3,489
 
Accrued pension liability
   
152
     
—
     
377
      K     
529
 
Deferred income taxes
   
100
     
77
     
916
      D     
1,093
 
Other liabilities
   
359
     
143
     
(145
)
    L     
357
 
Total liabilities
   
1,648
     
1,252
     
3,536
             
6,436
 
  Commitments and contingencies
                                       
Shareholders’ equity
                                       
Common stock
   
78
     
—
     
87
      N     
165
 
Additional paid-in capital
   
794
     
—
     
1,440
      N     
2,234
 
Accumulated other comprehensive (loss) income
   
(434
)
   
28
     
(7
)
    N     
(413
)
Retained earnings
   
615
     
—
     
(49
)
    N     
566
 
Net parent investment
   
—
     
912
     
(912
)
    N     
—
 
Total shareholders’ equity
   
1,053
     
940
     
559
             
2,552
 
Noncontrolling interest
   
—
     
114
     
(114
)
    M     
—
 
Total combined shareholders’ equity
   
1,053
     
1,054
     
445
      D     
2,552
 
Total liabilities and shareholders’ equity
 
$
2,701
   
$
2,306
   
$
3,981
           
$
8,988
 
 
See accompanying notes to the unaudited pro forma condensed combined financial statements.



3


Unaudited pro forma condensed combined statement of operations for the six months ended June 30, 2015
 
    Historical                    
   
 
Olin
Corporation
   
 
Dow Chlorine Products Business
   
 
Pro forma adjustments
   
 
 
Note 4
    Pro forma condensed combined  
                                                                             (in millions, except per share data)       
Sales
 
$
1,053
   
$
1,885
   
$
(29
)
    O
 
 
$
2,909
 
Operating expenses                                        
      Cost of goods sold
   
879
     
1,822
     
12
       P
 
   
2,713
 
Selling and administration
   
87
     
82
     
(8
)
     Q
 
   
161
 
Restructuring charges
   
2
     
—
     
—
             
2
 
Acquisition-related costs
   
21
     
—
     
(16
)
     R
 
   
5
 
Other operating income
   
42
     
—
     
—
             
42
 
Operating income (loss)
   
106
     
(19
)
   
(17
)
           
70
 
Earnings of non-consolidated affiliates
   
1
     
—
     
—
             
1
 
Interest expense
   
25
     
6
     
62
       S
 
   
93
 
Interest income
   
1
     
—
     
—
             
1
 
Income (loss) before taxes
   
83
     
(25
)
   
(79
)
           
(21
)
Income tax provisions (benefits)
   
28
     
1
     
(30
)
     T
 
   
(1
)
Net income (loss)
 
$
55
   
$
(26
)
 
$
(49
)
         
$
(20
)
Net income (loss) attributable to noncontrolling   interests
   
—
     
(5
)
   
5
       U
 
   
—
 
Net income (loss) attributable to the business
 
$
55
   
$
(21
)
 
$
(54
)
         
$
(20
)
Net income (loss) per common share attributable to the business                                        
    Basic   $ 0.71      
—
     
—
            $  (0.12 ) 
    Diluted   $  0.70        —      
—
            $ (0.12 ) 
Average common shares outstanding                                        
    Basic      77.5      
—
      87.5       V       165.0  
    Diluted     78.6      
—
      87.5      
V
      165.0  
 
 
 
 
 
 
See accompanying notes to the unaudited pro forma condensed combined financial statements.

 
4
 
 
Unaudited pro forma condensed combined statement of operations for the year ended December 31, 2014
 
    Historical              
   
Olin
Corporation
   
Dow Chlorine
Products Business
   
Pro forma
adjustments
    Note 4    
Pro forma
condensed combined
 
 
  (in millions, except per share data)  
Sales
 
$
2,241
   
$
4,776
   
$
(69
)
    O   
$
6,948
 
Operating expenses
                                       
Cost of goods sold
   
1,853
     
4,573
     
(64
)
    P     
6,362
 
Selling and administration
   
166
     
186
     
(16
)
    Q     
336
 
Restructuring charges
   
16
     
—
     
—
             
16
 
Acquisition-related costs
   
4
     
—
     
(4
)
    R     
—
 
Other operating income (loss)
   
2
     
(3
)
   
—
             
(1
)
Operating income
   
204
     
14
     
15
             
233
 
Earnings of non-consolidated affiliates
   
2
     
—
     
—
             
2
 
Interest expense
   
44
     
13
     
139
      S     
196
 
Interest income
   
1
     
—
     
—
             
1
 
Income (loss) from continuing operations before taxes
   
163
     
1
     
(124
)
           
40
 
Income tax provisions (benefits)
   
58
     
8
     
(46
)
    T     
20
 
Net income (loss) from continuing operations
 
$
105
   
$
(7
)
 
$
(78
)
         
$
20
 
Net income (loss) from continuing operations   attributable to
   noncontrolling interests
   
—
     
(5
)
   
5
      U     
—
 
Net income (loss) from continuing operations   attributable to the
   business
 
$
105
   
$
(2
)
 
$
(83
)
         
$
20
 
Net income from continuing operations per common share attributable to the business                                        
    Basic   $ 1.33      
—
     
—
            $ 0.12  
    Diluted   $ 1.32       —       —             $ 0.12  
Average common shares outstanding            
—
     
—
                 
    Basic     78.6       —       87.5       V      166.1  
    Diluted     79.7       —       87.5       V      167.2  
 
See accompanying notes to the unaudited pro forma condensed combined financial statements.
 
 

5


 
Olin Corporation and subsidiaries notes to the unaudited pro forma condensed combined financial statements

Note 1.  Basis of presentation

The accompanying unaudited pro forma condensed combined financial statements were prepared in accordance with Article 11 of Regulation S-X and present the pro forma combined financial position and results of operations of Olin based upon the historical financial statements of each of Olin and DCP, after giving effect to the Merger and the other Transactions, and are intended to reflect the impact of the Merger and the other Transactions on Olin’s consolidated financial statements. The accompanying unaudited pro forma condensed combined financial statements have been prepared using, and should be read in conjunction with, the respective unaudited consolidated or combined (as the case may be) financial statements of each of Olin and DCP as of and for the six months ended June 30, 2015 and the audited consolidated or combined (as the case may be) financial statements of each of Olin and DCP as of and for the year ended December 31, 2014. Assumptions and estimates underlying the pro forma adjustments are described in these notes. Since the accompanying unaudited pro forma condensed combined financial statements have been prepared based upon preliminary estimates and assumptions, the final amounts recorded may change these estimates as a more in-depth analysis will be carried out now that the Transactions have closed and such differences may be material.

The accompanying unaudited pro forma condensed combined financial statements are presented for illustrative purposes only and do not purport to be indicative of the actual results that would have been achieved by Olin if the Transactions had been consummated for the periods presented or that will be achieved in the future. The unaudited pro forma condensed combined financial statements do not reflect the costs of any integration activities or benefits that may result from realization of synergies expected to result from the Transactions. In addition, throughout the period presented in the unaudited pro forma condensed combined financial statements, the operations of DCP were conducted and accounted for as part of TDCC. DCP’s audited condensed financial statements have been derived from TDCC’s historical accounting records and reflect certain allocations of direct costs and expenses. All of the allocations and estimates in such financial statements are based on assumptions that the management of TDCC believes are reasonable. In the opinion of management, the unaudited pro forma condensed combined financial statements include all normal and recurring adjustments that are considered necessary for the fair presentation of the results for the period presented. DCP’s financial statements do not necessarily represent the financial position of DCP had it been operated as a stand-alone company during the period or at the date presented.

The unaudited pro forma condensed combined statement of operations combines the historical consolidated statement of operations of Olin and the historical combined statement of income (loss) of DCP for the six months ended June 30, 2015 and for the year ended December 31, 2014, giving effect to the Merger and the other Transactions as if they had been consummated on January 1, 2014. The unaudited pro forma condensed combined balance sheet combines the historical condensed consolidated balance sheet of Olin and the historical condensed combined balance sheet of DCP as of June 30, 2015, giving effect to the Merger and the other Transactions and adjustments described in these notes, as if the Transactions had been consummated on June 30, 2015.

The unaudited pro forma condensed combined financial statements were prepared using the acquisition method of accounting with Olin considered the acquirer of DCP. The audited historical combined financial statements of DCP have been adjusted to reflect certain reclassifications in order to conform to Olin’s financial statement presentation.
 
 
6

 
Note 2.  Purchase price allocation

The unaudited pro forma condensed combined balance sheet has been adjusted to reflect the allocation of the preliminary estimated purchase price to identifiable assets to be acquired and liabilities to be assumed, with the excess recorded as goodwill. The final purchase price allocation may be different than that reflected in the pro forma purchase price allocation presented herein, and this difference may be material. The purchase price allocation in these unaudited pro forma condensed combined financial statements is based upon an estimated purchase price of approximately $5,078 million. This amount was derived in accordance with the Merger Agreement, as described further below, based on the closing price of Olin common stock on October 2, 2015 and 87,482,759 shares of Olin common stock being issued in the Merger, and is subject to adjustment based on Splitco’s working capital in accordance with the terms of the Separation Agreement. The preliminary working capital adjustment of $50 million is reflected in the pro forma information.

The following table represents the preliminary estimate of the purchase price paid in the Merger (in millions, except per share data):

New shares issued (par value $1)
   
87.5
 
Closing price of Olin common stock on October 2, 2015
 
$
17.46
 
Stock consideration transferred
 
$
1,527
 
Cash and debt instruments received by TDCC(1)
   
2,080
 
Pension election cash payment
   
64
 
Up-front payments under the Ethylene Agreements
   
433
 
Consideration transferred
 
$
4,104
 
Debt assumed
   
556
 
Pension liabilities assumed (U.S. and German)
   
418
 
Total purchase price
 
$
5,078
 

(1)
Does not include a gross-up for customary underwriting fees.

The closing price of Olin common stock on October 2, 2015 was $17.46 per share.

The assumption of the U.S. pension liabilities and the pension election cash payment reflect the election by TDCC to transfer $273 million of net U.S. pension liability to Olin as of the closing date of the Merger in accordance with the Employee Matters Agreement. These amounts are subject to adjustment based on the actual value, determined as of the closing date of the Merger, of the U.S. pension liability and related assets that are transferred to Olin by TDCC. If the actual value, as of the closing date of the Merger, of the net U.S. pension liability transferred by TDCC to Olin is less than $400 million, Olin will be obligated to pay TDCC an amount in cash equal to the product of (x) and (y), where (x) equals (1) $400 million minus (2) the net U.S. pension liability transferred and (y) equals 0.5. This means, based on TDCC’s election, Olin would be required to pay approximately $64 million in cash consideration. Because the actual value of the net U.S. pension liability to be transferred to Olin may be greater or less than $273 million, the final purchase price could differ from the current estimate, which could impact the unaudited pro forma condensed combined financial statements.
 
 
7

 
The preliminary estimated purchase price is allocated as follows (in millions):

Total current assets(1)
 
$
813
 
Property, plant and equipment, net(2)
   
3,425
 
Intangible assets(3)
   
1,312
 
Other assets
   
15
 
Total assets acquired
   
5,565
 
Total current liabilities
   
470
 
Long-term debt
   
505
 
Accrued pension liabilities(4)
   
418
 
Deferred income taxes(5)
   
969
 
Other liabilities
   
19
 
Total liabilities assumed
   
2,381
 
Net identifiable assets acquired
   
3,184
 
   Goodwill(6)
   
920
 
Total consideration transferred
 
$
4,104
 

Assets and liabilities for which initial accounting is incomplete:

(1)
The preliminary inventory fair value estimate within total current assets is based on a step-up of inventory from book value to estimated fair value based on a preliminary estimation. A final valuation may change these estimates as a more in-depth analysis will be carried out now that the Transactions have closed and such differences may be material. See Note 3 (C) for further detail on the inventory fair value adjustment.
   
(2)
The preliminary property, plant and equipment fair value estimate is based on a preliminary valuation and is subject to change. A final valuation will be more detailed in its analysis including a further review of recent market transactions with comparable assets. See Note 3 (E) for further detail on the property, plant and equipment fair value adjustment.
   
(3)
The preliminary intangible asset fair value estimates are based on a preliminary valuation and are subject to change. The preliminary intangible assets associated with the Transactions include developed technologies, customer relationships, and up-front payments under the Ethylene Agreements. A final valuation may change these estimates as more in-depth income contribution is applied now that the Transactions have closed and such differences may be material. See Note 3 (F) for further details on the intangible assets fair value adjustment.
   
(4)
The preliminary accrued pension liabilities fair value consists of the assumption of German pension liabilities and the election by TDCC to transfer $273 million of net U.S. pension liability to Olin on the closing date of the Transactions based on the Employee Matters Agreement. The valuation of the German pension liability is based on the preliminary fair value for the German pension plan assets, the discount rate at December 31, 2014, and other actuarial assumptions. The net U.S. pension liability is subject to adjustment based on the actual value, determined as of the closing date of the Merger, of the U.S. pension liability and related assets that are transferred. A final valuation may change these estimates as more in-depth valuation methods are applied now that the Transactions have closed, and such differences may be material. See Note 3 (K) for further details.
   
(5)
The preliminary deferred income tax liabilities are based on a blended global statutory rate and do not reflect Olin’s expected tax rate. As of the effective time of the Transactions, Olin made adjustments to deferred taxes and other tax adjustments as part of accounting for the acquisition, primarily related to the estimated fair value adjustments for acquired intangibles and applicable pro forma adjustments to related assets and liabilities that will or will not be assumed by the combined company included herein. See Note 3 (D) for further details on the deferred income taxes.
   
(6)
The significant preliminary goodwill resulting from the Transactions is primarily due to the combination of Olin and DCP providing increased production capacity and diversification of Olin’s product portfolio and enhanced size and geographic presence. The cost-saving opportunities include improved operating efficiencies and asset optimization. See Note 3 (G) for further details on the goodwill adjustment.
 
 
8

 
Note 3.  Balance sheet adjustments

The unaudited pro forma condensed combined balance sheet reflects the following adjustments ($ in millions):
 
(A)
Cash and cash equivalents were adjusted as follows:
 
Payment of non-qualified pension plan and deferred compensation plans(1)
 
$
(100
)
Expected transaction costs(2)
   
(18
)
Special Payment to TDCC(3)
   
(875
)
Up-front payments under the Ethylene Agreements(4)
   
(433
)
Pension election cash payment(5)
   
(64
)
Olin term loan repayment(6)
   
(147
)
JV Entity debt repayment(6)
   
(556
)
Debt issuance costs(6)
   
(14
)
Senior Term Facilities(6)
   
1,350
 
Sumitomo Term Facility(6)
   
600
 
Total pro forma adjustment to cash and cash equivalents(7)
 
$
(257
)

(1)
Represents the payment of Olin liabilities associated with the non-qualified pension plan and the deferred compensation plans in the form of benefits to participants. The plans with which these payments are associated were terminated as a result of the Transactions, which triggered a change in control under these plans and required the payment of benefits.
   
(2)
Expected transaction costs are a preliminary estimate of expenses that Olin incurred prior to the consummation of the Transactions in connection with the Transactions for advisory, legal, accounting and other professional fees.
   
(3)
Represents the Special Payment that Splitco paid to TDCC in the amount of the Below Basis Amount.
   
(4)
Reflects $433 million in up-front payments made upon consummation of the Transactions pursuant to the Ethylene Agreements. The Ethylene Agreements are 20-year long-term capacity rights agreements for the supply of ethylene by TDCC at integrated producer economics.
   
(5)
Represents the required payment based on TDCC’s U.S. pension liability election. The amount is subject to adjustment based on the actual value, determined as of the closing date of the Merger, of the U.S. pension liability and related assets that are transferred to Olin by TDCC.
   
(6)
For a discussion of the Olin term loan repayment, the JV Entity debt repayment, the Senior Term Facilities, the Sumitomo Term Facility and the debt issuance costs paid, see Note 5, Financing adjustments, below.
   
(7)
Olin is currently seeking commitments under the New Term Facility, the proceeds of which would be used after the closing date of the Merger for working capital and other general corporate purposes. Olin makes no assurance it will obtain any new commitments.
 
(B)
Trade and other receivables were adjusted as follows:
 
Excluded assets(1)
 
$
(5
)
Preliminary working capital adjustment (2)
 
 
50
 
Total pro forma adjustment to trade and other receivables
 
$
45
 

(1)
Represents certain trade receivables included in DCP’s historical balance sheet which were not transferred under the Separation Agreement.
   
(2)
The preliminary working capital adjustment of $50 million reflected in receivables, net will impact cash and cash equivalents, receivables, net, inventories, accounts payable and accrued liabilities once the preliminary working capital adjustment detail is known after the closing of the Transactions.
 
(C)
Inventories were adjusted as follows:
 
Preliminary fair value adjustment(1)
 
$
68
 
Total pro forma adjustment to inventories
 
$
68
 

(1)
Represents the estimated fair value adjustment to DCP’s inventory of $68 million based upon a preliminary fair value estimate of $393 million. This amount has not been reflected as a pro forma adjustment in the unaudited pro forma condensed combined statement of operations.
 
 
 
9
 
 
(D)
Deferred taxes, income taxes receivable, and income taxes payable were adjusted as follows (1):
 
Income taxes receivable
   
Pension and deferred compensation adjustments
 
$
39
 
Total pro forma adjustment to income taxes receivable
 
$
39
 
Current portion of deferred tax asset
       
Environmental liabilities that will not be assumed
 
$
(4
)
Pension liabilities adjustments
   
(9
)
Removal of valuation allowances
   
3
 
Investment of foreign earnings that will not be assumed
   
(1
)
Reclassification of deferred taxes
   
(4
)
Total pro forma adjustment to current deferred income tax asset
 
$
(15
)
Income taxes payable
       
Elimination of liability that will not be assumed
 
$
(16
)
Total pro forma adjustment to income taxes payable
 
$
(16
)
Current portion of deferred tax liability
       
Inventory fair value adjustment
 
$
23
 
Total pro forma adjustment to current deferred income tax liability
 
$
23
 
Non-current portion of deferred tax asset
       
Environmental liabilities that will not be assumed
 
$
1
 
Net operating losses and tax credit carryforwards that will not be retained
   
(1
)
Removal of valuation allowances
   
73
 
Investment of foreign earnings that will not be assumed
   
1
 
Reclassification of deferred taxes
   
(75
)
Total pro forma adjustment to non-current deferred tax asset
 
$
(1
)
Non-current portion of deferred tax liability
       
Identifiable intangible assets fair value adjustment
 
$
288
 
Property, plant and equipment fair value adjustment
   
619
 
Domestic pension liabilities that will be assumed
   
(107
)
Foreign pension liabilities that will be assumed
   
(43
)
Pension and deferred compensation adjustments
   
24
 
Environmental liabilities that will not be assumed
   
18
 
Net operating losses and tax credit carryforwards that will not be retained
   
257
 
Removal of valuation allowances
   
(37
)
Goodwill that will not be retained
   
(6
)
Investment of foreign earnings that will not be assumed
   
(18
)
Reclassification of deferred taxes
   
(79
)
Total pro forma adjustment to non-current deferred income tax liability
 
$
916
 

(1)
Reflects an adjustment to deferred tax assets and liabilities representing a blended global statutory rate of approximately 37% multiplied by either (i) the preliminary fair value adjustments made to the assets to be acquired and liabilities to be assumed, excluding goodwill, or (ii) the applicable pro forma adjustments to related assets and liabilities that will or will not be assumed by the combined company included herein. For purposes of these unaudited pro forma condensed financial statements, a global blended statutory tax rate of approximately 37% has been used. This does not reflect Olin’s expected effective tax rate, which will include other tax charges and benefits, and does not take in to account any historical or possible future tax events that may impact Olin following the consummation of the Transactions.
 
 
10
 
 
(E)
Property, plant and equipment, net were adjusted as follows:
 
Included/excluded assets(1)
 
$
14
 
Preliminary fair value adjustment(2)
   
1,886
 
Total pro forma adjustment to property, plant and equipment, net
 
$
1,900
 
 
(1)
To adjust certain assets included in DCP’s historical balance sheet to align with what was transferred in accordance with the Separation Agreement. This adjustment includes additional assets transferred that were not reflected in the condensed combined financial statements of DCP, net of certain assets that were not transferred.
   
(2)
Represents the estimated fair value adjustment to DCP’s property, plant and equipment of $1,886 million based upon a preliminary fair value estimate of $3,411 million. For purposes of determining the impact on the unaudited pro forma condensed combined statement of operations, the fair value of property, plant and equipment is being depreciated over an estimated remaining weighted-average useful life of 14 years.
 
(F)
Intangibles, net were adjusted as follows:
 
Preliminary fair value adjustment(1)
 
$
1,312
 
Elimination of DCP historical intangibles
   
(3
)
Total pro forma adjustment to intangibles, net
 
$
1,309
 

(1)
The preliminary fair value adjustment is the estimated intangible assets attributable to the Transactions and is comprised of the following:

   
Estimated
fair value
   
Estimated
useful life
   
Weighted
average useful life
 
Developed technologies(a)
 
$
152
     
7
     
Customer relationships(b)
   
727
     
15
     
Up-front payments under the Ethylene Agreements(c)
   
433
     
20
     
Total intangibles
 
$
1,312
             
15
 

(a)     
The estimated fair value for this pro forma presentation for technology was measured using the relief-from-royalty method. Developed technologies reflects the entire portfolio of patents transferred to Splitco. This method assumes the technology has value to the extent that the owner is relieved of the obligation to pay royalties for the benefits received from them. Significant assumptions required to develop estimates using this method are revenue growth rates for similar developed technology, the appropriate royalty rate, an appropriate discount rate and obsolescence of technology.
(b)
The estimated fair values for this pro forma presentation for customer relationships were measured using the multi-period excess earnings method. The principle behind the multi-period excess earnings method is that the value of an intangible is equal to the present value of the incremental after-tax cash flows attributable to the subject intangible asset, after taking charges for the use of other assets employed by the business. Significant assumptions required for this method are revenue growth rates and probability related to customers, customer attrition rates, contributory asset charges and an appropriate discount rate.
(c)
The estimated fair value for this pro forma presentation for the up-front payments under the Ethylene Agreements was $433 million, which is the up-front payments made upon consummation of the Transactions pursuant to the Ethylene Agreements. The Ethylene Agreements are 20-year long-term capacity rights agreements for the supply of ethylene by TDCC at integrated producer economics.
 
(G)
Goodwill was adjusted as follows:
 
Estimated transaction goodwill(1)
 
$
920
 
Elimination of DCP historical goodwill
   
(56
)
Total pro forma adjustment to goodwill
 
$
864
 

(1)
Reflects the preliminary adjustment to goodwill. The significant goodwill resulting from the Transactions is primarily due to the combination of Olin and DCP providing increased production capacity and diversification of Olin’s product portfolio and enhanced size and geographic presence. The cost-saving opportunities include improved operating efficiencies and asset optimization.
 
(H)
Other assets, current installments of long-term debt and long-term debt were adjusted as described below in Note 5, Financing adjustments.
 
 

11
 
 
(I)
Accounts payable were adjusted as follows:

Excluded liabilities(1)
 
$
(5
)
Total pro forma adjustments to accounts payable
 
$
(5
)

(1)
To adjust certain liabilities included in DCP’s historical balance sheet to align with what was assumed in accordance with the Separation Agreement.
 
(J)
Accrued liabilities were adjusted as follows:
 
Excluded liabilities(1)
 
$
(36
)
Payment of non-qualified pension plan(2)
   
(22
)
Total pro forma adjustments to accrued liabilities
 
$
(58
)

(1)
To adjust certain liabilities included in DCP’s historical balance sheet to align with what was assumed in accordance with the Separation Agreement. Certain environmental, legal and other liabilities relating to periods prior to the closing date of the Merger were retained by TDCC in accordance with the Separation Agreement.
   
(2)
Represents the payment of Olin liabilities associated with the non-qualified pension plan in the form of benefits to participants. The plan with which these payments are associated was terminated as a result of the Transactions, which triggered a change in control under the plan and required the payment of benefits.
 
(K)
Accrued pension liability was adjusted as follows:
 
Assumption of German pension liability(1)
 
$
145
 
Assumption of U.S. pension liability(2)
   
273
 
Payment of non-qualified pension plan(3)
   
(41
)
Total pro forma adjustments to accrued pension liability
 
$
377
 

(1)
Represents an adjustment for certain accrued defined benefit pension liabilities relating to employees of TDCC in Germany who transferred to Olin in connection with the Transactions in accordance with the Separation Agreement. The adjustment to the pension liability is estimated based on the preliminary fair value for the German pension plan assets, the discount rate at December 31, 2014, and other actuarial assumptions.
   
(2)
Represents the net U.S. pension liability that TDCC elected to transfer to Olin as of the closing date of the Merger in accordance with Employee Matters Agreement. This amount is subject to adjustment based on the actual value, determined as of the closing date of the Merger, of the U.S. pension liability and related assets that are transferred to Olin by TDCC. If the actual value, as of the closing date of the Merger, of the net U.S. pension liability transferred by TDCC to Olin is less than $400 million, Olin will be obligated to pay TDCC an amount in cash equal to the product of (x) and (y), where (x) equals (1) $400 million minus (2) the net U.S. pension liability transferred and (y) equals 0.5. This means based on TDCC’s election, Olin would be required to pay approximately $64 million in cash consideration, which remains subject to adjustment as described above.
   
(3)
Represents the payment of Olin liabilities associated with the non-qualified pension plan in the form of benefits to participants. The plan with which these payments are associated was terminated as a result of the Transactions, which triggered a change in control under this plan and required the payment of benefits.
 
(L)
Other liabilities were adjusted as follows:
 
Excluded liabilities(1)
 
$
(124
)
Payment of deferred compensation plans(2)
   
(21
)
Total pro forma adjustments to other liabilities
 
$
(145
)
 
(1)
To adjust certain liabilities included in DCP’s historical balance sheet to align with what was transferred in accordance with the Separation Agreement. Certain environmental, legal and other liabilities relating to periods prior to the closing date of the Merger were retained by TDCC in accordance with the Separation Agreement.
(2)
Represents the payment of Olin liabilities associated with the deferred compensation plans in the form of benefits to participants. The plans with which these payments are associated have been terminated as a result of the Transactions, which triggered a change in control under these plans and required the payment of benefits.
 
(M)
Noncontrolling interest was eliminated due to the JV Partner’s exercise of its right for a Tag Event.
 
 
12
 
 
(N)
Shareholders’ equity was adjusted as follows:
 
Issuance of shares of Olin common stock(1)
 
$
1,527
 
Elimination of total combined DCP shareholders’ equity(2)
   
(940
)
Expected transaction costs(3)
   
(18
)
Non-qualified pension plan expense (net of tax)(4)
   
(10
)
Total pro forma adjustment to shareholders’ equity
 
$
559
 

(1)  
Relates to the shares of Olin common stock issued in the Merger. The pro forma adjustment is based upon the closing price of Olin common stock as of October 2, 2015. Of the new stock issued, $87 million is recorded as par value of common stock and $1,440 million is recorded as additional paid-in capital.
   
(2)
Relates to the elimination of DCP’s parent company investment of $912 million and $28 million of accumulated other comprehensive loss.
   
(3)
Reflects a preliminary estimate of the costs that Olin incurred prior to the consummation of the Transactions in connection with the Transactions for advisory, legal, accounting and other professional fees. This amount has not been tax effected as the tax deductibility of these items has not been determined.
   
(4)
Represents expense associated with the non-qualified pension plan in the form of benefits to participants. Additionally, the termination of this plan results in the transfer of $21 million of unamortized actuarial losses from accumulated other comprehensive loss to retained earnings. The plan with which these adjustments are associated was terminated as a result of the Transactions, which triggered a change in control under the plan and required the recognition of $10 million of additional expense.

Note 4.  Income statement adjustments

The unaudited pro forma condensed combined statement of operations reflects the following adjustments (in millions):
 
(O)
Sales were adjusted as follows:
 
   
For the six months
ended June 30, 2015
   
For the year ended
December 31, 2014
 
Excluded assets/liabilities(1)
 
$
(52
)
 
$
(88
)
Re-pricing of sales to TDCC(2)
   
27
     
31
 
Olin and DCP eliminations(3)
   
(4
)
   
(12
)
Total pro forma adjustment to sales
 
$
(29
)
 
$
(69
)
 
(1)  
Relates to adjustments to sales related to operations and commercial arrangements that were not transferred and commercial arrangements transferred in accordance with the Separation Agreement.
   
(2)
Represents the re-pricing of sales to TDCC relating to arrangements for long-term supply agreements for the sale of raw materials and services pursuant to the Separation Agreement. These agreements were executed on the closing date of the Merger. This pro forma adjustment represents changes in sales that would have been generated due to these agreements had they been in place on January 1, 2014.
   
(3)
Represents the elimination of DCP’s sales to Olin as reported in DCP’s historical statement of operations. There were no sales transactions from Olin to DCP for the six months ended June 30, 2015 or the year ended December 31, 2014.
 
(P)
Cost of goods sold were adjusted as follows:
 
   
For the six months
ended June 30, 2015
   
For the year ended
December 31, 2014
 
Adjustment to depreciation and amortization of DCP assets acquired(1)
 
$
59
   
$
117
 
Excluded assets/liabilities(2)
   
(31
)
   
(123
)
Re-pricing of raw materials and services to/from DCP/TDCC(3)
   
(12
)
   
(46
)
Olin and DCP eliminations(4)
   
(4
)
   
(12
)
Total pro forma adjustment to cost of goods sold
 
$
12
   
$
(64
)
 
 
13
 

(1)  
Represents the adjustment to DCP’s historical depreciation and amortization as a result of preliminary fair value adjustments to the acquired depreciable assets and amortizable intangible assets and adjustments to their respective estimated remaining useful lives, see Notes 3(E) and 3(F).
   
(2)
Represents adjustments to expenses related to operations and commercial arrangements that were not transferred and additional assets and commercial arrangements transferred in accordance with the Separation Agreement. This adjustment also includes a reduction of $9 million for the six months ended June 30, 2015 and $12 million for the fiscal year ended December 31, 2014 associated with environmental expenses that were attributable to production sites not being transferred. See Note 6, Items Not Included.
   
(3)
Relates to arrangements for long-term supply agreements for raw materials, including ethylene and benzene, and services pursuant to the Separation Agreement. These agreements were executed on the closing date of the Merger. This pro forma adjustment represents changes in raw material costs and operating expenses that would have been incurred due to these agreements had they been in place on January 1, 2014.
   
(4)
Represents the elimination of DCP’s sales to Olin as reported in DCP’s historical statement of operations. There were no sales transactions from Olin to DCP for the six months ended June 30, 2015 or the fiscal year ended December 31, 2014.
 
(Q)
Selling and administration was adjusted as follows:
 
   
For the six months
ended June 30, 2015
   
For the year ended
December 31, 2014
 
Adjustment to depreciation of DCP assets acquired(1)
 
$
—
   
$
1
 
Excluded assets/liabilities(2)
   
(3
)
   
(8
)
Re-pricing of services to/from DCP/TDCC(3)
   
(3
)
   
(6
)
Non-qualified pension change in control(4)
   
(2
)
   
(3
)
Total pro forma adjustment to selling and administration
 
$
(8
)
 
$
(16
)

(1)
Represents the adjustment to DCP’s historical depreciation as a result of preliminary fair value adjustments to the acquired depreciable assets and adjustment to their respective remaining useful lives.
   
(2)
Represents adjustments to expenses related to operations that were not transferred in accordance with the Separation Agreement.
   
(3)
Relates to arrangements for services between DCP and TDCC following the consummation of the Transactions pursuant to the Separation Agreement. These agreements were executed on the closing date of the Merger. This pro forma adjustment represents changes in operating expenses that would have been incurred due to these agreements had they been in place on January 1, 2014.
   
(4)
Relates to the elimination of the Olin non-qualified pension expense incurred for the six months ended June 30, 2015 or the year ended December 31, 2014. The plan with which these expenses were associated was terminated as a direct result of the Merger, which triggered a change in control clause for the pension plan. As a result, these expenses are not expected to have a continuing impact on results following the consummation of the Transactions.
 
(R)
Acquisition-related costs were adjusted as follows:
 
   
For the six months
ended June 30, 2015
   
For the year ended
December 31, 2014
 
Transaction costs(1)
 
$
(16
)
 
$
(4
)
Total pro forma adjustment to acquisition-related costs
 
$
(16
)
 
$
(4
)

(1)
Relates to advisory and legal fees incurred for the six months ended June 30, 2015 and the fiscal year ended December 31, 2014, which are directly attributable to the Merger, but which are not expected to have a continuing impact on results following the consummation of the Transactions.
 
(S)
Interest expense was adjusted as described below in Note 5, Financing adjustments.
 
(T)
For purposes of the unaudited pro forma condensed combined financial statements, a global blended statutory tax rate of approximately 37% has been used. This does not reflect Olin’s effective tax rate, which will include other tax items such as state and foreign taxes as well as other tax charges and benefits, and does not take into account any historical or possible future tax events that may impact Olin following the consummation of the Transactions.
 
(U)
Represents the elimination of income attributable to noncontrolling interest due to the JV Partner’s exercise of its right for a Tag Event.
 
(V)
The adjustment to both weighted average shares outstanding and diluted weighted average shares outstanding is to reflect the 87.5 million shares of Olin common stock issued in the Merger. For purposes of the unaudited pro forma condensed combined statement of operations for the six months ended June 30, 2015, the dilutive impacts of stock-based compensation of 1.1 million shares have been excluded from the calculation of the pro forma diluted loss per share, as the effect of including them would have been anti-dilutive.
 
 
 
14
 
 
Note 5.  Financing adjustments

On the closing date of the Merger, Olin and Splitco incurred indebtedness of approximately $1,950 million, which consisted of $1,350 million of term loans under the Senior Term Facilities and $600 million of term loans under the Sumitomo Term Facility, to (i) finance the Special Payment, (ii) pay fees and expenses of Olin in connection with the Transactions, (iii) refinance the terms loans outstanding under the Existing Credit Facilities, (iv) refinance indebtedness of the JV Entity under the JV Credit Agreement, (v) finance the required cash payment to TDCC based on TDCC’s U.S. pension liability election, (vi) make other payments in connection with the Transactions and (vii) to the extent net proceeds remain, fund general corporate purposes. In addition, Splitco issued the Splitco Securities to TDCC in connection with the Debt Exchange. Upon consummation of the Merger, Olin and Splitco entered into agreements to guarantee each other’s obligations under this indebtedness.

Olin is currently seeking commitments under the New Term Facility, the proceeds of which would be used after the closing date of the Merger for working capital and other general corporate purposes. Olin makes no assurance it will obtain any new commitments, and such commitments are not reflected in the unaudited pro forma condensed combined financial statements.

Current installments of long-term debt were adjusted as follows (in millions):

Senior Term Facilities(1)
 
$
66
 
Olin term loan repayment(2)
   
(4
)
JV Entity debt repayment(3)
   
(51
)
Total pro forma adjustment to current installments of long-term debt
 
$
11
 
 
(1)
Represents the current portion of borrowings under the Senior Term Facilities. Olin and Splitco obtained $1,350 million of separate commitments for term loans and drew the entire amount in order to finance the Transactions. The annual average interest rate included in the unaudited pro forma condensed combined statement of operations with respect to the Senior Term Facilities is based on the terms of the commitments.
   
(2)
Represents repayment by Olin of the current portion of the term loans outstanding under the Existing Credit Facilities. These term loans were repaid with the proceeds of the Senior Credit Facilities.
   
(3)
Represents repayment by Olin of the current portion of indebtedness of the JV Entity under the JV Credit Agreement. This debt was repaid with the proceeds of the Sumitomo Term Facility.
 
Long-term debt was adjusted as follows (in millions):

Splitco Securities(1)
 
$
1,220
 
Senior Term Facilities(2)
   
1,284
 
Sumitomo Term Facility(3)
   
600
 
Olin term loan repayment(4)
   
(143
)
JV Entity debt repayment(5)
   
(505
)
Excluded liabilities(6)
   
(23
)
Total pro forma adjustment to long-term debt
 
$
2,433
 
 
 
(1)
Represents the notes issued by Splitco to TDCC immediately prior to the Distribution. The Splitco Securities were transferred by TDCC on the closing date of the Merger to investment banks and/or commercial banks in exchange for existing debt of TDCC.
   
(2)
Represents the long-term portion of borrowings under the Senior Term Facilities. Olin and Splitco obtained $1,350 million of separate commitments for term loans and drew the entire amount in order to finance the Transactions. The annual average interest rate included in the unaudited pro forma condensed combined statement of operations with respect to the Senior Term Facilities is based on the terms of the commitments.
   
(3)
Represents borrowings under the Sumitomo Term Facility. Olin obtained $600 million of commitments for term loans and drew the entire amount in order to refinance indebtedness of the JV Entity under the JV Credit Agreement and to pay fees and expenses of Olin and make other payments in connection with the Transactions.
   
(4)
Represents repayment by Olin of the long-term portion of the term loans outstanding under the Existing Credit Facilities. These term loans were repaid with proceeds of the new indebtedness incurred by Olin.
   
(5)
Represents repayment by Olin of the long-term portion of indebtedness of the JV Entity under the JV Credit Agreement. This debt was repaid with the proceeds of the new indebtedness incurred by Olin.
   
(6)
To adjust certain liabilities included in DCP’s historical balance sheet to align with what was transferred in accordance with the Separation Agreement. Certain debt liabilities were repaid prior to the closing of the Merger.
 
 
15
 
 
Other assets were adjusted as follows (in millions):

Capitalized financing fees(1)
 
$
29
 
Total pro forma adjustments to other assets
 
$
29
 
 
(1)     
Represents the capitalized financing fees related to the Senior Term Facilities, the Sumitomo Term Facility, the Olin Revolving Facility and the Splitco Securities.

The unaudited pro forma condensed combined statement of operations reflects adjustments to include an estimate of the interest expense on the additional indebtedness incurred in connection with the Transactions.

A summary of the adjustments to current installments of long-term debt, long-term debt and interest expense is as follows (in millions):

   
Principal
amount as of
June 30, 2015
   
Interest expense for
the six months ended
June 30, 2015
   
Interest expense
for the year ended
December 31, 2014
 
Splitco Securities
 
$
1,220
   
$
61
   
$
122
 
Senior Term Facilities(1)(2)
   
1,350
     
12
     
25
 
Sumitomo Term Facility(1)(3)
   
600
     
5
     
10
 
Olin term loan repayment(4)
   
(147
)
   
(1
)
   
(9
)
JV Entity debt repayment(5)
   
(556
)
   
(6
)
   
(13
)
Olin Revolving Facility(6)
   
—
     
1
     
1
 
Excluded liabilities(7)
   
(23
)
   
—
     
—
 
Amortization of new debt issuance costs(1)
   
—
     
(10
)
   
3
 
   
$
2,444
   
$
62
   
$
139
 

(1)
For each one-eighth of 1% change in estimated interest rate associated with the $1,350 million in borrowings under the Senior Term Facilities and the $600 million in borrowings under the Sumitomo Term Facility, interest expense would increase or decrease by approximately $1 million for the six months ended June 30, 2015 and approximately $2 million for the year ended December 31, 2014.
   
(2)
Olin and Splitco obtained $1,350 million of separate commitments for term loans and drew the entire amount in order to finance the Transactions. The annual average interest rate included in the unaudited pro forma condensed combined statement of operations with respect to the Senior Term Facilities is based on the terms of the commitments.
   
(3)
Olin obtained $600 million of commitments for term loans and drew the entire amount in order to refinance indebtedness of the JV Entity under the JV Credit Agreement and to pay fees and expenses of Olin and make other payments in connection with the Transactions. The annual average interest rate included in the unaudited pro forma condensed combined statement of operations with respect to the Sumitomo Term Facility is based on the terms of the commitments.
   
(4)
Represents repayment by Olin of the term loans outstanding under Olin’s Existing Credit Facilities. These term loans were repaid with the proceeds of the new indebtedness incurred by Olin.
   
(5)
Represents repayment by Olin of the indebtedness of the JV Entity under the JV Credit Agreement. This debt was repaid with the proceeds of the new indebtedness incurred by Olin.
   
(6)
Olin obtained a $500 million commitment for a senior unsecured revolving credit facility. These commitments were not drawn on for purposes of the Transactions, and the $1 million interest expense for the six months ended June 30, 2015 and the year ended December 31, 2014 relates to commitment fees on the undrawn Olin Revolving Facility.
   
(7)
To adjust certain liabilities included in DCP’s historical balance sheet to align with what was transferred in accordance with the Separation Agreement. Certain debt liabilities were repaid prior to the closing of the Merger.
 

 
16
 
 
Note 6.  Items not included

The following expected material nonrecurring charges related to the Merger and the other Transactions are not included or provided for in the unaudited pro forma condensed combined statement of operations:
 
●      
an additional preliminary estimate of $15 to $20 million of advisory, legal, accounting and other professional fees incurred in connection with the Transactions during the remainder of 2015; and
   
●
approximately $50 million of costs associated with the change in control mandatory acceleration of expenses under the Olin non-qualified pension plan that resulted from consummation of the Transactions.

The unaudited pro forma condensed combined financial statements do not reflect benefits that may result from the realization of savings for costs allocated to DCP from TDCC. Included in DCP’s combined statement of operations within the unaudited pro forma condensed combined financial statements are allocations of certain expenses for services including, but not limited to, general corporate expenses related to finance, legal, information technology, human resources, ethics and compliance, shared services, employee benefits and incentives, insurance and stock-based compensation. These expenses have been allocated on the basis of direct usage when identifiable with the remainder allocated on the basis of headcount or other measures. The allocations may not reflect the expense that would have been incurred as a part of Olin. Olin management estimates that approximately $250 million of annual costs would not have been incurred by DCP had DCP been a part of Olin for the year ended December 31, 2014.

The unaudited pro forma condensed combined financial statements also do not reflect benefits that may result from the realization of approximately $200 million of annualized cost synergies expected to be realized within three years following the consummation of the Transactions, or, if Olin is able to increase sales to new third-party customers and access new product markets as a result of the Transactions, the potential additional annualized synergies of up to $100 million that Olin estimates may potentially be achievable within three years from the consummation of the Transactions. Olin expects to incur significant one-time costs in connection with the Transactions, including approximately (1) $55 to $60 million during 2015 of advisory, legal, accounting, integration and other professional fees related to the Transactions, (2) $25 to $30 million of financing-related fees, (3) $50 million of costs associated with the change in control mandatory acceleration of expenses under deferred compensation plans as a result of the Transactions, (4) $100 to $150 million in transition-related costs during the first three years following the consummation of the Transactions, and (5) $200 million in incremental capital spending during the first three years following the consummation of the Transactions that Olin management believes is necessary to realize the anticipated synergies from the Transactions.

The unaudited pro forma condensed combined balance sheet does not include an environmental liability for DCP, which is consistent with the Separation Agreement. The historical combined statements of operations for DCP included environmental remediation expense of $15 million for the six months ended June 30, 2015 and $30 million for the year ended December 31, 2014. The unaudited pro forma condensed combined statements of operations include a reduction of $9 million for the six months ended June 30, 2015 and $12 million for the year ended December 31, 2014 attributable to production sites not being transferred.

The unaudited pro forma condensed combined balance sheet includes a de-recognition of trade accounts receivable of $45 million in DCP’s unaudited historical balance sheet. DCP’s trade accounts receivable were subject to inclusion in TDCC’s various trade accounts receivable securitization programs whereby trade accounts receivable of select entities were sold on a revolving basis to certain multi-seller commercial paper conduit entities. The trade accounts receivable assigned to Splitco in the Merger include the full trade accounts receivable of DCP with no similar de-recognition.
 
 
17
 
 
As of June 30, 2015, Olin had a valuation allowance of $17 million recorded on its deferred tax assets. This valuation allowance relates predominately to Olin’s state net operating losses, state tax credit and capital loss carry-forwards. As part of the purchase price allocation process resulting from the Merger, it is possible that deferred tax liabilities will be recorded in the various domestic jurisdictions that, if recorded, could result in a release of a portion of the valuation allowance. Any release of a valuation allowance on Olin’s pre-Merger deferred tax assets will be recorded in the income statement in the period that the Merger is completed; however no such adjustment is included in the unaudited pro forma condensed combined financial statements due to its nonrecurring nature.

Olin is currently seeking commitments under the New Term Facility, the proceeds of which would be used after the closing date of the Merger for working capital and other general corporate purposes. Olin makes no assurance it will obtain any new commitments, and such commitments are not reflected in the unaudited pro forma condensed combined financial statements.
 
 
18
 
HELPFUL DEFINITIONS
● “Below Basis Amount” means $875 million;
● “Contribution” means the contribution by TDCC, directly or indirectly, of the equity interests in the DCP Subsidiaries to Splitco pursuant to the Separation Agreement;
● “DCP Subsidiaries” refers to the newly-formed direct and indirect subsidiaries of TDCC that hold the transferred assets and certain assumed liabilities related to DCP following the Separation and were contributed to Splitco prior to the consummation of the Distribution, pursuant to the Contribution;
●  “Debt Exchange” means the transfer of the Splitco Securities by TDCC on or about the closing date of the Merger to the investment banks and/or commercial banks in exchange for existing TDCC debt;
●  “Distribution” means the distribution by TDCC of its shares of Splitco common stock to the holders of shares of TDCC common stock by way of an exchange offer;
●  “Dow Chlorine Products Business” or “DCP” means TDCC’s U.S. chlor-alkali and vinyl, global epoxy and global chlorinated organics business, including TDCC’s equity interests in the JV Entity;
●  “Employee Matters Agreement” means the Employee Matters Agreement, dated as of March 26, 2015, among TDCC, Spinco and Olin;
●  “Ethylene Agreements” means certain 20-year long-term capacity rights agreements for the supply of ethylene by TDCC to Olin at producer economics;
●  “Splitco Securities” means the notes issued by Splitco to TDCC immediately prior to the Distribution in connection with the Transactions;
●  “Existing Credit Facilities” means Olin’s $410 million senior credit facilities, dated June 24, 2014;
●  “JV Credit Agreement” means the Credit Agreement governing the existing indebtedness of the JV Entity;
●  “JV Entity” means Dow-Mitsui Chlor-Alkali LLC, a joint venture between TDCC and Mitsui & Co. Texas Chlor-Alkali, Inc.;
●  “JV Partner” means Mitsui & Co. Texas Chlor-Alkali, Inc.;
●  “Merger” means the combination of Olin’s business and the Dow Chlorine Products Business through the merger of Merger Sub with and into Splitco, whereby the separate corporate existence of Merger Sub will cease and Splitco will continue as the surviving company and as a wholly-owned subsidiary of Olin, as contemplated by the Merger Agreement;
●  “Merger Agreement” means the Agreement and Plan of Merger, dated as of March 26, 2015, among TDCC, Splitco, Olin and Merger Sub;
●  “Merger Sub” means Blue Cube Acquisition Corp., a Delaware corporation and a wholly-owned subsidiary of Olin;
●  “New Term Facility” means the commitments that Olin is currently seeking under an upsize of an existing credit facility or a proposed new term loan facility;
●  “Olin” means Olin Corporation;
●  “Olin common stock” means the common stock, par value $1 per share, of Olin;
 
19
 
●  “Olin Credit Facilities” means, collectively, the Olin Term Facility and the Olin Revolving Facility;
●  “Olin Term Facility” means the term facility under the Olin Credit Agreement;
●  “Olin Credit Agreement” means the Credit Agreement, dated as of June 23, 2015, among Olin and Olin Canada ULC, the lenders party thereto and Wells Fargo Bank, National Association, as administrative agent;
●  “Olin Revolving Facility” means the revolving facility under the Olin Credit Agreement;
●  “Senior Credit Facilities” means, collectively, the Olin Credit Facilities and the Splitco Term Facility;
●  “Senior Term Facilities” means collectively, the Olin Term Facility and the Splitco Term Facility;
●  “Separation” means the transfer by TDCC to Splitco or the DCP Subsidiaries directly or indirectly of the transferred assets and certain assumed liabilities related to DCP pursuant to the Separation Agreement;
●  “Separation Agreement” means the Separation Agreement, dated as of March 26, 2015, among TDCC and Splitco;
●  “Special Payment” means the cash payment to be made in connection with the Transactions by Splitco to TDCC in an amount equal to the Below Basis Amount;
●  “Splitco” means Blue Cube Spinco Inc., a Delaware corporation, and prior to the Merger, a wholly-owned subsidiary of TDCC;
●  “Splitco Credit Agreement” means the Credit Agreement, dated as of June 23, 2015, with a syndicate of lenders and Wells Fargo Bank, National Association, as administrative agent;
●  “Splitco Term Facility” means the term facility under the Splitco Credit Agreement under which Splitco may obtain term loans in an aggregate amount of up to the lesser of (i) $1,050 million and (ii) the Below Basis Amount;
●  “Sumitomo Credit Agreement” means the Credit Agreement, dated August 25, 2015, among Olin, certain lenders and Sumitomo Mitsui Banking Corporation, as administrative agent;
●  “Sumitomo Term Facility” means the term facility under the Sumitomo Credit Agreement under which Olin may obtain terms loans in an aggrerate amount of up to $600 million;
●  “Tag Event” means the exercise by the JV Partner prior to the closing date of the Merger of its right to transfer all of its equity interests in the JV Entity to TDCC or TDCC’s designee in connection with the Transactions pursuant to the organizational documents of the JV Entity;
●  “TDCC” means The Dow Chemical Company, a Delaware corporation; and
●  “Transactions” means the transactions contemplated by the Merger Agreement and the Separation Agreement, which provide for, among other things, the Separation, the Contribution, the Distribution and the Merger.
 
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