Exhibit 4.1

EXECUTION VERSION

VENATOR FINANCE S.À R.L.

Venator Materials LLC

and each of the Guarantors PARTY HERETO

9.500% SENIOR SECURED NOTES DUE 2025

INDENTURE

Dated as of May 22, 2020

Wilmington Trust, National Association,

as Trustee and Notes Collateral Agent

TABLE OF CONTENTS

Appendices

Exhibits

This Indenture, dated as of May 22, 2020, is by and among Venator Finance S.à r.l., a private limited liability company (société à responsabilité limitée) incorporated under the laws of the Grand Duchy of Luxembourg (“Luxembourg”), having its registered office at 8-10 avenue de la Gare, L-1610 Luxembourg, Grand Duchy of Luxembourg, registered with the Luxembourg Register of Commerce under number B215641 (“Venator Finance”), Venator Materials LLC, a Delaware limited liability company (“Venator Co-Issuer” and, together with Venator Finance, the “Issuers”), the guarantors listed on the signature pages hereto and Wilmington Trust, National Association, as trustee (in such capacity, the “Trustee”) and as notes collateral agent (in such capacity, the “Notes Collateral Agent”).

RECITALS OF THE ISSUERS

WHEREAS, the Issuers have duly authorized the execution and delivery of this Indenture to provide for (i) the issuance of $225,000,000 in aggregate principal amount of 9.500% Senior Secured Notes due 2025 issued on the date hereof (the “Initial Notes”) and (ii) the issuance of Additional Notes (as defined herein) that may be issued from time to time on any date subsequent to the Issue Date, to be guaranteed as provided herein by the Guarantors;

WHEREAS, all things necessary have been done by the Issuers to make this Indenture, when executed and delivered by the Issuers, a valid, binding and legal instrument;

WHEREAS, all things necessary have been done by the Issuers to make the Notes, when executed by the Issuers and authenticated and delivered in accordance with the provisions of this Indenture, the valid obligations of the Issuers.

NOW, THEREFORE, THIS INDENTURE WITNESSETH:

For and in consideration of the premises and the purchase of the Notes by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders, as follows:

ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE

Section 1.1.      Definitions.

“ABL Collateral Agent” means JPMorgan Chase Bank, N.A., in its capacity as the collateral agent under the ABL Credit Facility, or any successor representative acting in such capacity.

“ABL Credit Facility” means that certain Revolving Credit Agreement, dated as of August 8, 2017, by and among Holdings, the Issuers, certain Subsidiaries party thereto, J.P. Morgan Chase Bank, N.A., as administrative agent and collateral agent, and the several lenders and other agents party thereto, including any notes, guarantees, collateral and security documents, instruments and agreements executed in connection therewith (including Hedging Obligations related to the Indebtedness incurred thereunder), and in each case as such agreement or facility may be amended (including any amendment or restatement thereof), supplemented or otherwise modified from time to time, including any agreement or indenture exchanging, extending the maturity of, refinancing, renewing, replacing, substituting or otherwise restructuring, whether in the bank or debt capital markets (or combination thereof) (including increasing the amount of available borrowings thereunder, changing the maturity or adding or removing Subsidiaries as borrowers or guarantors thereunder and whether or not with the same agents, lenders, investors or holders) all or any portion of the Indebtedness under such agreement or facility or any successor or replacement agreement or facility.

“ABL Documents” means the ABL Credit Facility, any additional credit agreement, note purchase agreement, indenture or other agreement related thereto and all other loan or note documents, collateral or security documents, notes, guarantees, instruments and agreements governing or evidencing, or executed or delivered in connection with, the ABL Credit Facility or any Pari Passu ABL Lien Indebtedness, as such agreements or instruments may be amended, supplemented, modified, restated, replaced, renewed, refunded, restructured, increased or refinanced from time to time.

“ABL Intercreditor Agreement” means that certain ABL Intercreditor Agreement, dated as of August 8, 2017, among the Issuers, the Guarantors, the ABL Collateral Agent and the Term Loan Collateral Agent, as amended, supplemented or modified from time to time, including by that Additional Debt Joinder Agreement and Supplement, to be executed in connection with this Indenture by the Notes Collateral Agent in order to become a party to the ABL Intercreditor Agreement.

“ABL Obligations” means all Indebtedness, liabilities and obligations (of every kind or nature) incurred or arising under or relating to the ABL Documents that is secured by a Permitted Lien described under clause (17) of the definition thereof, and all other obligations of the Issuers or any Guarantor in respect thereof.

“ABL Priority Collateral” consists of that portion of the Collateral consisting of:

(1)            Accounts;

(2)            Payment Intangibles;

(3)            Inventory;

(4)            General Intangibles, intangibles, trade receivables, Instruments, Documents, documents of title and Chattel Paper evidencing or substituted for the foregoing;

(5)            all Deposit Accounts, including any account with a deposit function, with any bank or other financial institution (including all cash, cash equivalents, financial assets, negotiable instruments and other evidence of payment, and other funds on deposit therein or credited thereto);

(6)            all Securities Accounts with any securities intermediary (including any and all Investment Property held therein or credited thereto), except to the extent that such Investment Property constitute identifiable proceeds of Pari Passu Priority Collateral;

(7)            all accessions to, substitutions for and replacements of the foregoing, together with all books and records, customer lists, credit files, computer files, programs, printouts and other computer materials and records related thereto and any General Intangibles at any time evidencing or relating to any of the foregoing;

(8)            all Commercial Tort Claims, Letter of Credit Rights, Records relating to the foregoing; and

(9)            to the extent not otherwise included, all Proceeds (including without limitation, all insurance proceeds), Supporting Obligations and products of any and all of the foregoing and all collateral security and guarantees given by any Person with respect to any of the foregoing.

Capitalized terms used in this definition but not otherwise defined in this Indenture are defined more particularly in the New York Uniform Commercial Code or the PPSA, as applicable.

“ABL Representative” means, (1) in the case of the ABL Credit Facility, the ABL Collateral Agent and (2) in the case of any other Pari Passu ABL Lien Indebtedness, the trustee, agent or representative of the holders of such Pari Passu ABL Lien Indebtedness who is appointed as a representative of such Pari Passu ABL Lien Indebtedness (for purposes related to the administration of the applicable security documents related thereto) pursuant to the indenture, credit agreement or other agreement governing such Pari Passu ABL Lien Indebtedness.

“Acquired Indebtedness” means:

(1)            with respect to any Person that becomes a Restricted Subsidiary after the Issue Date, Indebtedness of such Person and its Subsidiaries (including, for the avoidance of doubt, Indebtedness incurred in the ordinary course of such Person’s business to acquire assets used or useful in its business) existing at the time such Person becomes a Restricted Subsidiary; and

(2)            with respect to Holdings or any Restricted Subsidiary, any Indebtedness of a Person (including, for the avoidance of doubt, Indebtedness incurred in the ordinary course of such Person’s business to acquire assets used or useful in its business), other than Holdings or a Restricted Subsidiary, existing at the time such Person is merged or consolidated with or into Holdings or a Restricted Subsidiary, or Indebtedness expressly assumed by Holdings or any Restricted Subsidiary in connection with the acquisition of an asset or assets from another Person,

in each case of (1) and (2) regardless of whether such Indebtedness is incurred in connection with, or in contemplation of, such other Person merging with or into or becoming a Restricted Subsidiary.

“Additional Notes” means Notes (other than the Initial Notes) issued pursuant to Article II and otherwise in compliance with the provisions of this Indenture whether or not they bear the same CUSIP number.

“Affiliate” of any Person means any other Person which directly or indirectly controls or is controlled by, or is under direct or indirect common control with, the referent Person. For purposes of this definition, “control” of a Person shall mean 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.

“Agent” means any Registrar, Paying Agent, co-registrar or other agent appointed pursuant to this Indenture.

“amend” means to amend, supplement, restate, amend and restate or otherwise modify, including successively, and “amendment” shall have a correlative meaning.

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

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

(2)            the excess, if any, of:

(a)            the present value at such redemption date of (i) the redemption price of such Note at July 1, 2022 (such redemption price being set forth in the table appearing in Section 3.7(b)) plus (ii) all required interest payments (excluding accrued and unpaid interest, if any, to such redemption date) due on such Note through July 1, 2022, computed using a discount rate equal to the Treasury Rate as of such redemption date plus 50 basis points discounted to the redemption date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months); over

(b)            the principal amount of such Note.

“asset” means any asset or property, including, without limitation, Equity Interests.

“Asset Acquisition” means:

(1)            an Investment by Holdings or any Restricted Subsidiary of Holdings in any other Person if, as a result of such Investment, such Person shall become a Restricted Subsidiary of Holdings, or shall be merged with or into Holdings or any Restricted Subsidiary of Holdings, or

(2)            the acquisition by Holdings or any Restricted Subsidiary of Holdings of all or substantially all of the assets of any other Person (other than a Restricted Subsidiary of Holdings) or any division or line of business of any such other Person (other than in the ordinary course of business).

“Asset Sale” means:

(1)            any sale, conveyance, transfer, lease, assignment or other disposition for value by Holdings or any Restricted Subsidiary to any Person other than Holdings or any Restricted Subsidiary, including by means of a sale and leaseback transaction or a merger or consolidation, in one transaction or a series of related transactions, of any assets of Holdings or any of its Restricted Subsidiaries other than in the ordinary course of business; or

(2)            any issuance of Equity Interests of a Restricted Subsidiary (other than Preferred Stock of Restricted Subsidiaries issued in compliance with Section 4.9) to any Person other than Holdings or any Restricted Subsidiary, in one transaction or a series of related transactions (other than directors’ qualifying shares and shares issued to foreign nationals as required by law) (the actions described in these clauses (1) and (2), collectively, for purposes of this definition, a “transfer”).

For purposes of this definition, the term “Asset Sale” shall not include:

(a)            transfers of cash or Cash Equivalents;

(b)            transfers of assets (including Equity Interests) that are governed by, and made in accordance with, Section 4.13 or Section 5.1;

(c)            Permitted Investments and Restricted Payments permitted under Section 4.7;

(d)            the lease, assignment or sublease of real or personal property in the ordinary course of business;

(e)            the creation, incurrence or assumption of or realization on or perfection of any Permitted Lien and any disposition of assets resulting from the enforcement or foreclosure of any such Permitted Lien;

(f)            transfers of damaged, worn-out or obsolete equipment or assets that, in Holdings’ reasonable judgment, are no longer necessary, used or useful in the business of Holdings or its Restricted Subsidiaries;

(g)            the abandonment of Intellectual Property rights in the ordinary course of business which in the reasonable view of Holdings are uneconomical or not material to the business of Holdings and its Restricted Subsidiaries taken as a whole;

(h)            sales or grants of licenses or sublicenses to use the patents, trade secrets, know-how and other Intellectual Property, and licenses, leases or subleases of other assets, of Holdings or any Restricted Subsidiary to the extent not materially interfering with the business of Holdings and its Restricted Subsidiaries (other than as would have a material adverse effect on the value of the Collateral or the ability of the Notes Collateral Agent or the Holders to realize the benefits of, and intended to be afforded by, the Collateral);

(i)            a disposition of inventory in the ordinary course of business;

(j)            a disposition of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring and similar arrangements or any sale of assets received by Holdings or a Restricted Subsidiary upon the foreclosure of a Lien granted in favor of Holdings or a Restricted Subsidiary;

(k)            the trade or exchange by Holdings or any Restricted Subsidiary of any asset for any other asset or assets that are used in a Permitted Business; provided that the Fair Market Value of the asset or assets received by Holdings or any Restricted Subsidiary in such trade or exchange (including any cash or Cash Equivalents) is at least equal to the Fair Market Value (as determined in good faith by the Board of Directors or an executive officer of Holdings with responsibility for such transaction, which determination shall be conclusive evidence of compliance with this provision) of the asset or assets disposed of by Holdings or any Restricted Subsidiary pursuant to such trade or exchange; and, provided, further, that if any cash or Cash Equivalents are used in such trade or exchange to achieve an exchange of equivalent value, that the amount of such cash and/or Cash Equivalents received shall be deemed proceeds of an “Asset Sale,” subject to clause (p) below; provided, further that to the extent the assets that are the subject of the trade or exchange are Collateral, the asset or assets received shall also be Collateral of the same priority as the asset disposed of and which are thereupon with their acquisition added to the Collateral securing the Notes;

(l)            dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell or put/call arrangements between joint venture parties set forth in joint venture agreements or any similar binding arrangements;

(m)            the disposition of assets received in settlement of debts accrued in the ordinary course of business;

(n)            the surrender or waiver in the ordinary course of business of contract rights, the termination of leases in the ordinary course of business or the settlement, release or surrender of contractual, non-contractual, tort or other claims of any kind;

(o)            dispositions of real property and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management or consultants of Holdings or any of its Restricted Subsidiaries;

(p)            any transfer or series of related transfers that, but for this clause, would be Asset Sales, if after giving effect to such transfers, the aggregate Fair Market Value of the assets transferred in such transaction or any such series of related transactions does not exceed $15.0 million per occurrence;

(q)            any issuance, sale or disposition of Equity Interests, Indebtedness or other securities of an Unrestricted Subsidiary, any other disposition of such Unrestricted Subsidiary or any disposition of assets of such Unrestricted Subsidiary;

(r)            the issuance of Preferred Stock or Disqualified Equity Interests of Restricted Subsidiaries not prohibited by this Indenture; and

(s)            the sale of (i) defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction and (ii) accounts receivable and related assets in connection with a Qualified Receivables Financing.

“Authenticating Agent” means an agent appointed by the Trustee in accordance with Section 2.2(d) and Section 7.10 for the purpose of authenticating the Notes.

“Bankruptcy Law” means the Bankruptcy Code and any other federal, state or foreign law for the relief of debtors, or any arrangement, reorganization, insolvency, moratorium, assignment for the benefit of creditors, any other marshalling of the assets or liabilities of Holding or any of its Subsidiaries, or similar law affecting creditors’ rights generally.

“Board of Directors” means, with respect to any Person, (i) in the case of any corporation, the board of directors of such Person and (ii) in any other case, the functional equivalent of the foregoing or, in each case, other than for purposes of the definition of “Change of Control,” any duly authorized committee of such body.

“Borrowing Base” has the meaning given to the term “Aggregate Borrowing Base” in the ABL Credit Facility as in effect on August 8, 2017.

“Business Day” means a day other than a Saturday, Sunday or other day on which banking institutions in the United Kingdom, the Grand Duchy of Luxembourg, the State of New York and, with respect to payments, the place of payment, are authorized or required by law to close.

“Capitalized Lease” means a lease required to be capitalized on a balance sheet (excluding the footnotes thereto) prepared in accordance with GAAP. Notwithstanding the foregoing, any lease (whether entered into before or after the Issue Date) that would have been classified as an operating lease pursuant to GAAP as in effect on the Issue Date shall be deemed not to be a Capitalized Lease.

“Capitalized Lease Obligations” means the obligations of any 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 effectively transfer control of the underlying asset and represents an in-substance financed purchase of an asset, and the amount of such obligations are required to be classified and accounted for as “finance leases” on the balance sheet of such Person, in accordance with GAAP, including, without limitation, Accounting Standards Codification 842 and related accounting rules and regulations, as such may be amended or re-codified from time to time. The amount of Indebtedness represented by any Capitalized Lease Obligation shall be the capitalized amount of such obligation determined in accordance with GAAP; and the Stated Maturity thereof shall be the date of the last payment of rent or any other amount due under such lease prior to the first date upon which such lease may be terminated by the lessee without payment of a penalty. For purposes of Section 4.12, a Capitalized Lease Obligation shall be deemed secured by a Lien on the property being leased. For the avoidance of doubt, the term “Capitalized Lease Obligations” does not include any obligations of a Person under any operating leases entered into in the ordinary course of business that do not effectively transfer control of the underlying asset and do not represent an in-substance financed purchase of an asset under GAAP, including, without limitation, Accounting Standards Codification 842 and related accounting rules and regulations, as such may be amended or re-codified from time to time, notwithstanding that GAAP and such accounting rules and regulations, such as Accounting Standards Codification 842, may require that such obligations be recognized on the balance sheet of such Person as a lease liability (along with the related right-of-use asset).

“Captive Insurance Company” means a Subsidiary of the Issuers created solely for providing self-insurance for Holdings and its Subsidiaries and engaging in no other activities other than activities ancillary thereto and necessary for the maintenance of corporate existence.

“Cash Equivalents” means:

(1)            U.S. dollars, Canadian dollars, Japanese yen, pounds sterling, euros or any other national currency of any participating member of the European Union or, in the case of any Foreign Subsidiary, any local currencies held by it from time to time in the ordinary course of business and not for speculation;

(2)            direct obligations of the United States of America, Canada, the United Kingdom or any member of the European Union or any agency thereof or obligations guaranteed by the United States of America, Canada, the United Kingdom or any member of the European Union or any agency thereof, in each case, with maturities not exceeding two years;

(3)            time deposits, eurodollar time deposits, certificates of deposit and money market deposits, in each case, with maturities not exceeding one year from the date of acquisition thereof, and overnight bank deposits, in each case, with any commercial bank having capital, surplus and undivided profits of not less than $250.0 million;

(4)            repurchase obligations for underlying securities of the types described in clauses (2) and (3) above and clause (6) below entered into with a bank meeting the qualifications described in clause (3) above;

(5)            commercial paper or variable or fixed rate notes maturing not more than one year after the date of acquisition issued by a corporation rated at least “P-1” by Moody’s or “A-1” by S&P (or reasonably equivalent ratings of another internationally recognized rating agency);

(6)            securities with maturities of two years or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States of America, or by any political subdivision or taxing authority thereof, having one of the two highest rating categories obtainable from either Moody’s or S&P (or reasonably equivalent ratings of another internationally recognized rating agency);

(7)            Indebtedness issued by Persons with a rating of at least “A 2” by Moody’s or “A” by S&P (or reasonably equivalent ratings of another internationally recognized rating agency), in each case, with maturities not exceeding one year from the date of acquisition, and marketable short-term money market and similar securities having a rating of at least “P-2” or “A-2” from either Moody’s or S&P (or reasonably equivalent ratings of another internationally recognized rating agency);

(8)            Investments in money market funds with average maturities of 12 months or less from the date of acquisition that are rated “Aaa3” by Moody’s and “AAA” by S&P (or reasonably equivalent ratings of another internationally recognized rating agency);

(9)            instruments equivalent to those referred to in clauses (1) through (8) above denominated in any foreign currency comparable in credit quality and tenor to those referred to above customarily utilized in the countries where any such Restricted Subsidiary is located or in which such Investment is made; and

(10)            shares of mutual funds whose investment guidelines restrict 95% of such funds’ investments to those satisfying the provisions of clauses (1) through (9) above.

“CFC” means a “controlled foreign corporation” within the meaning of Section 957 of the Code owned by a Domestic Subsidiary.

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

(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 properties or assets of Holdings and its Restricted Subsidiaries, taken as a whole, to any “person” (as that term is used in Section 13(d)(3) of the Exchange Act), other than transactions with a Permitted Holder;

(2)            any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act), other than a Permitted Holder, is or becomes the beneficial owner of (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that for purposes of this clause that person or group shall be deemed to have “beneficial ownership” of all securities that any such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time), or controls, directly or indirectly, Voting Stock representing more than 50.0% of the voting power of the total outstanding Voting Stock of Holdings on a fully diluted basis, other than by a merger or consolidation that meets the criteria specified in the proviso in clause (3);

(3)            the merger or consolidation of Holdings with or into another Person or the merger of another Person with or into Holdings, unless the holders of a majority of the aggregate voting power of the Voting Stock of Holdings, immediately prior to such transaction, hold securities of Holdings or 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 Holdings or the surviving or transferee Person;

(4)            the adoption by the stockholders of Holdings of a Plan of Liquidation; or

(5)            the Issuers cease to be, directly or indirectly, Wholly-Owned Subsidiaries of Holdings.

For purposes of this definition, a Person shall not be deemed to have beneficial ownership of securities subject to a stock purchase agreement, merger agreement or similar agreement until the consummation of the transactions contemplated by such agreement.

“Code” means the Internal Revenue Code of 1986, as amended from time to time.

“Collateral” means the Pari Passu Priority Collateral and the ABL Priority Collateral, other than U.S. Excluded Assets, Excluded Pension Assets and other assets excluded pursuant to the Guaranty and Security Principles.

“Common Stock” means with respect to any Person, any and all shares, interest or other participations in, and other equivalents (however designated and whether voting or nonvoting) of such Person’s common stock whether or not outstanding on the Issue Date, and includes, without limitation, all series and classes of such common stock.

“Consolidated Amortization Expense” for any period means the amortization expense of the relevant Person and its Restricted Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP.

“Consolidated Cash Flow” for any period means, with respect to any specified Person and its Restricted Subsidiaries, without duplication, the sum of the amounts for such period of:

(1)            Consolidated Net Income, plus

(2)            in each case only to the extent deducted in determining Consolidated Net Income,

(a)            provision for taxes based on income, profits or capital, including state, franchise, excise and similar taxes and foreign withholding taxes paid or accrued, including any penalties and interests relating to any tax examinations, and state taxes in lieu of business fees (including business license fees) and payroll tax credits, income tax credits and similar tax credits, and including an amount equal to the amount of tax distributions actually made to the holders of Equity Interests of any direct or indirect parent of the Issuers or the Restricted Subsidiaries in respect of such period (in each case, to the extent attributable to the operations of Holdings and its Restricted Subsidiaries), which will be included as though such amounts had been paid as income taxes directly by Holdings,

(b)            cash dividend payments (excluding items eliminated in consolidation) on any Disqualified Equity Interest of Holdings or any Restricted Subsidiary,

(c)            Consolidated Amortization Expense,

(d)            Consolidated Depreciation Expense,

(e)            Consolidated Interest Expense,

(f)            any costs, expenses, losses or charges (including advisory, legal and professional fees) related to the Transactions and any transaction that is out of the ordinary course of business permitted under the indenture, including issuance of debt or equity, investments, acquisition, disposition, asset sale, recapitalization, mergers, option buyouts or incurrence, issuance, amendment, waiver, modification, redemption or refinancing of any Indebtedness, whether or not consummated, including (A) prepayment premiums, breakage costs and LIBOR indemnities or funding costs, (B) such fees, expenses or charges related to the offering of the Notes and any Debt Facilities, (C) any amendment or modification relating to such Indebtedness or similar transactions, (D) any net loss from the extinguishment of any Indebtedness of any Person or the amortization or write-off of Indebtedness issuance costs or Indebtedness discount and (E) any expenses in connection with related due diligence activities or other transactions costs, in each case, as determined by any Officer of Holdings,

(g)            any charge, loss, fee, expense, cost accrual or reserve of any kind attributable to the undertaking and/or implementation of cost savings initiatives, cost rationalization programs, operating expense reductions, and/or synergies (including, without limitation, in connection with any integration, restructuring or transition, facility openings and/or reopenings, inventory optimization programs, curtailments and/or future lease commitments), restructuring charges, charges relating to the closure or consolidation of facilities (including, without limitation, severance, rent termination costs, moving costs and legal costs), severance charges, retention or completion bonuses, charges associated with modifications to pension and post-retirement employee benefit plans, corporate development charges and professional and consulting fees incurred in connection with any of the foregoing,

(h)            any expense or deduction attributable to minority Equity Interests of third parties in any Restricted Subsidiary that is not a Wholly-Owned Subsidiary of Holdings,

(i)             the amount of management, monitoring, consulting, transaction and advisory fees (including termination fees) and related indemnities, charges and expenses paid or accrued to or on behalf of any direct or indirect parent (other than Holdings) or any of the Permitted Holders, in each case, to the extent permitted by Section 4.11,

(j)             all charges, costs, expenses, accruals or reserves in connection with the rollover, acceleration or payout of Equity Interests held by officers or employees of Holdings and its Subsidiaries and all losses, charges and expenses related to payments made to holders of options or other derivative Equity Interests in the common equity of any direct or indirect parent in connection with, or as a result of, any distribution being made to equityholders of such Person or any of its direct or indirect parents, which payments are being made to compensate such option holders as though they were equityholders at the time of, and entitled to share in, such distribution,

(k)            all non-cash losses, charges and expenses, including any write-offs or write-downs; provided that if any such non-cash charge represents an accrual or reserve for potential cash items in any future four-fiscal quarter period (i) Holdings may determine not to add back such non-cash charge in the period for which Consolidated Cash Flow is being calculated and (ii) to the extent Holdings does decide to add back such non-cash charge, the cash payment in respect thereof in such future, four-fiscal quarter period will be subtracted from Consolidated Cash Flow for such future four-fiscal quarter period,

(l)             earn-out obligations incurred or accrued in connection with any acquisition and/or Permitted Investment and paid or accrued during such period,

(m)            factually supportable and identifiable pro forma cost savings related to operational efficiencies, strategic initiatives or purchasing improvements and other synergies, in each case, reasonably expected by Holdings and the Restricted Subsidiaries to be realized based upon actions reasonably expected to be taken within 18 months of the date of such calculation (without duplication of the amount of actual benefit realized during such period from such actions), which cost savings, improvements and synergies can be reasonably computed, as certified in writing by an Officer of Holdings; provided that any such pro forma adjustments in respect of such cost savings, improvements and synergies shall not exceed 20% of Consolidated Cash Flow (before giving effect to all such adjustments) for any four-quarter period; provided, further, that such pro forma adjustments shall be determined in good faith by a Responsible Financial or Accounting Officer of Holdings whether or not such pro forma adjustments would be permitted under SEC rules or guidelines,

(n)            non-recurring incremental costs arising out of the temporary interruption of the supply of goods to Holdings and its Subsidiaries,

(o)            charges, resulting from the write-off of capital expenditures arising from the cancellation of project or design plants, and

(p)            all other non-cash items reducing the Consolidated Net Income (excluding any non-cash charge that results in an accrual of a reserve for cash charges in any future period) for such period, minus

(3)            without duplication, the aggregate amount of all non-cash items, determined on a consolidated basis, to the extent such items increased Consolidated Net Income for such period (excluding any non-cash items to the extent they represent the reversal of an accrual of, or cash reserve for, anticipated cash charges that were deducted (and not added back) in the calculation Consolidated Cash Flow in any prior period).

“Consolidated Depreciation Expense” for any period means the depreciation expense of the relevant Person and its Restricted Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP.

“Consolidated Interest Coverage Ratio” means, on any date of determination, with respect to any Person, the ratio of (x) Consolidated Cash Flow during the most recent four consecutive full fiscal quarters for which internal financial statements prepared on a consolidated basis in accordance with GAAP are available (the “Four-Quarter Period”) ending on or prior to the date of the transaction giving rise to the need to calculate the Consolidated Interest Coverage Ratio (the “Transaction Date”) to (y) Consolidated Interest Expense for the Four-Quarter Period. For purposes of this definition, Consolidated Cash Flow and Consolidated Interest Expense shall be calculated after giving effect on a pro forma basis for the period of such calculation to:

(1)            the incurrence or issuance of any Indebtedness or the issuance of any Disqualified Equity Interests of Holdings or any Restricted Subsidiary or Preferred Stock of any Restricted Subsidiary (and the application of the proceeds thereof) and any repayment, repurchase or redemption of other Indebtedness or other Disqualified Equity Interests or Preferred Stock (and the application of the proceeds therefrom) (other than the incurrence or repayment of Indebtedness in the ordinary course of business for working capital purposes pursuant to any revolving credit arrangement), 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, repayment, repurchase, issuance or redemption, as the case may be (and the application of the proceeds thereof), occurred on the first day of the Four-Quarter Period; and

(2)            any Asset Sale or Asset Acquisition (including, without limitation, any Asset Acquisition giving rise to the need to make such calculation as a result of Holdings or any Restricted Subsidiary (including any Person who becomes a Restricted Subsidiary as a result of such Asset Acquisition) incurring, assuming or otherwise becoming liable for Indebtedness or Acquired Indebtedness and also including any Consolidated Cash Flow) in each case 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 of, or assumption or liability for, any such Indebtedness or Acquired Indebtedness) occurred on the first day of the Four-Quarter Period.

provided, further, that in the case of clauses (1) and (2) above, such pro forma calculations shall be determined in good faith by a Responsible Financial or Accounting Officer of Holdings whether or not such pro forma adjustments would be permitted under SEC rules or guidelines.

In calculating Consolidated Interest Expense for purposes of determining the denominator (but not the numerator) of this Consolidated Interest Coverage Ratio:

(a)            interest on outstanding Indebtedness 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 Indebtedness in effect on the Transaction Date;

(b)            if interest on any Indebtedness 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 (or, if none, than based on such optional rate chosen as the Person may designate); and

(c)            notwithstanding clause (a) or (b) above, interest on Indebtedness 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 Interest Expense” for any period means the sum, without duplication, of the aggregate interest expense of the relevant Person and its Restricted Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP, to the extent such expense was deducted in computing Consolidated Net Income, including, without duplication:

(1)            interest component of Capitalized Lease Obligations;

(2)            commissions, discounts and other fees and charges owed with respect to letters of credit securing financial obligations, bankers’ acceptance financing and receivables financings;

(3)            the net costs associated with Hedging Obligations related to interest rates, other than in connection with early termination (excluding amortization of fees or any non-cash interest expense attributable to the movement in mark-to-market valuation of such obligations);

(4)            amortization of original issue discount;

(5)            all other non-cash interest expense;

(6)            capitalized interest;

(7)            all dividend payments on any series of Disqualified Equity Interests of Holdings or any of its Restricted Subsidiaries or any Preferred Stock of any Restricted Subsidiary (other than dividends on Equity Interests payable solely in Qualified Equity Interests of Holdings, or to Holdings or a Restricted Subsidiary of Holdings);

(8)            all interest payable with respect to discontinued operations; and

(9)            all interest on any Indebtedness described in clause (7) or (8) of the definition of Indebtedness.

Consolidated Interest Expense shall not include any interest expenses relating to (A) amortization or write-off of deferred financing fees, debt issuance costs, debt discount or premium, terminated hedging obligations and other commissions, financing fees and expenses, (B) any expensing of bridge, commitment or other financing fees and (C) all discounts, commissions, fees and other charges associated with any Receivables Facility.

“Consolidated Net Income” for any period means the net income (or loss) of such Person and its Restricted Subsidiaries, in each case for such period, determined on a consolidated basis in accordance with GAAP; provided that there shall be excluded in calculating such net income (or loss), to the extent otherwise included therein, without duplication:

(1)            the net income (or loss) of any Person (other than a Restricted Subsidiary) in which any Person other than Holdings and the Restricted Subsidiaries has an ownership interest, except to the extent that cash in an amount equal to any such income has actually been received by Holdings or any of its Restricted Subsidiaries during such period;

(2)            except to the extent includible in the net income (or loss) of Holdings pursuant to the foregoing clause (1), the net income (or loss) of any Person that accrued prior to the date that (a) such Person becomes a Restricted Subsidiary or is merged into or consolidated with Holdings or any Restricted Subsidiary or (b) the assets of such Person are acquired by Holdings or any Restricted Subsidiary;

(3)            solely for purposes of Section 4.7, the net income of any Restricted Subsidiary other than the Issuers or a Subsidiary Guarantor during such period to the extent that the declaration or payment of dividends or similar distributions by such Restricted Subsidiary of that income is not permitted by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Restricted Subsidiary during such period, unless such restriction with respect to the payment of dividends has been legally waived and provided that Consolidated Net Income will be increased by an amount of cash dividends or distributions actually paid to such Person or a Restricted Subsidiary of such Person;

(4)            gains or losses attributable to discontinued operations;

(5)            any gain (or loss), charge or write-off, together with any related provisions for taxes on any such gain (or the tax effect of any such loss), realized or recorded during such period by Holdings or any Restricted Subsidiary upon (a) the acquisition of any securities, or the extinguishment of any Indebtedness (including any charges attributable to the early extinguishment or cancellation of Indebtedness), of Holdings or any Restricted Subsidiary or (b) any Asset Sale (or asset sale) by Holdings or any Restricted Subsidiary or abandonments or reserves relating thereto;

(6)            gains and losses due solely to fluctuations in currency values and the related tax effects according to GAAP;

(7)            unrealized gains and losses with respect to Hedging Obligations or other derivative instruments;

(8)            the cumulative effect of any change in accounting principles or policies;

(9)            any extraordinary, non-recurring, exceptional or unusual gain, loss, expense or charge and the related tax effect;

(10)            any non-cash compensation charges or other non-cash charges or expenses (including write-offs and write-downs) with respect to the grant, issuance, payment or repricing of stock options, restricted stock or other equity compensation awards or employee benefit plans or agreements or post-employment benefit plans or agreements or any amendment, modification, substitution or change of any equity-based award and any non-cash net after tax gains or losses attributable to the termination of any employee pension benefit plan;

(11)          accruals and reserves that are established or adjusted within 12 months relating to the consummation of acquisitions in accordance with GAAP;

(12)          to the extent covered by insurance and actually reimbursed, or, so long as Holdings has made a determination that there exists reasonable evidence that such amount will in fact be reimbursed by the insurer and only to the extent that such amount is (a) not denied by the applicable carrier in writing within 180 days and (b) in fact reimbursed within 365 days of the date of such evidence (with a deduction for any amount so added back to the extent not so reimbursed within 365 days), expenses with respect to liability or casualty events or business interruption;

(13)          goodwill write-downs or other non-cash impairments of assets, any non-cash impairment charges resulting from the application of SFAS No. 142—Goodwill and Other Intangibles and No. 144—Accounting for the Impairment or Disposal of Long-Lived Assets, the amortization of intangibles and the effects of SFAS No. 141—Business Combinations and any successor statements;

(14)          all net after-tax gain, loss, expense or charge attributable to business dispositions and asset dispositions other than in the ordinary course of business (as determined in good faith by Holdings);

(15)          effects of purchase accounting, fair value accounting or recapitalization accounting adjustments (including the effects of such adjustments pushed down to the referent Person and its Restricted Subsidiaries) resulting from the application of purchase accounting, fair value accounting or recapitalization accounting in relation to any acquisition consummated before or after the Issue Date, and the amortization write-down or write-off of any amounts thereof, net of taxes;

(16)          all amortization and write-offs of deferred financing fees, debt issuance costs, commissions, fees and expenses and expensing of any bridge, commitment or other financing fees;

(17)          losses, charges and expenses that are covered by indemnification or other reimbursement provisions in connection with any asset disposition will be excluded to the extent actually reimbursed, or, so long as such Person has made a determination that a reasonable basis exists for indemnification or reimbursement, but only to the extent that such amount is in fact indemnified or reimbursed within 365 days of such determination (with a deduction in the applicable future period for any amount so added back to the extent not so indemnified or reimbursed within such 365 days); and

(18)          non-cash charges for deferred tax asset valuation allowances.

“Consolidated Total Assets” means, as of any date, the total assets of Holdings and its Restricted Subsidiaries, determined on a consolidated basis in accordance with GAAP, determined based upon the most recent quarter-end financial statements available internally as of the date of determination, and calculated on a pro forma basis.

“Corporate Trust Office” means the offices of the Trustee at which at any time this Indenture is being administered, which office as of the date hereof is located at Wilmington Trust, National Association, 50 South Sixth Street, Suite 1290, Minneapolis, Minnesota 55402; Attention: Venator Materials Administrator, or such other address as the Trustee may designate from time to time by notice to the Holders and the Issuers, or the corporate trust office of any successor trustee (or such other address as such successor trustee may designate from time to time by notice to the Holders and the Issuers).

“Coverage Ratio Exception” has the meaning set forth in Section 4.9(a).

“Custodian” means the Person appointed as custodian for the Depositary with respect to the Global Notes, or any successor entity thereto.

“Customary Recourse Exceptions” means, with respect to any Non-Recourse Debt of an Unrestricted Subsidiary, exclusions from the exculpation provisions with respect to such Non-Recourse Debt for the voluntary bankruptcy of such Unrestricted Subsidiary, fraud, misapplication of cash, environmental claims, waste, willful destruction and other circumstances customarily excluded by lenders from exculpation provisions or included in separate indemnification agreements in non-recourse financings.

“Debt Facilities” means one or more debt facilities, debt instruments, indentures or other evidences of Indebtedness (which may be outstanding at the same time and including, without limitation, the Term Loan Credit Facility and the ABL Credit Facility), commercial paper facilities or other agreements providing for revolving credit loans, debt securities, notes, term loans, receivables financing, letters of credit or other Indebtedness and, in each case, as such agreements may be amended, refinanced, restated, replaced, refunded, increased, extended or otherwise restructured, in whole or in part from time to time whether in the bank or debt capital markets (or combination thereof) (including increasing or decreasing the amount of available borrowings thereunder or adding or removing Subsidiaries of Holdings as additional borrowers, co-issuers or guarantors thereunder or changing the maturity of any Indebtedness incurred thereunder or contemplated thereby) with respect to all or any portion of the Indebtedness under such agreement or agreements or any successor or replacement agreement or agreements, and in each case including all agreements, instruments and documents executed and delivered pursuant to or in connection with the foregoing (including any notes and letters of credit issued pursuant thereto and any guarantee and collateral agreement, mortgages or letter of credit applications and other guarantees, pledges, agreements, security agreements and collateral documents) and whether by the same or any other agent, lender, group of lenders or institutional lenders or investors.

“Default” means any event, act or condition that, after notice or the passage of time or both, would be an Event of Default.

“Definitive Note” means a certificated Initial Note or Additional Note (bearing the Restricted Notes Legend (as defined in Appendix A) if the transfer of such Note is restricted by applicable law) that does not include the Global Notes Legend (as defined in Appendix A).

“Depositary” means with respect to the Notes issuable or issued in whole or in part in global form, the Person specified in Section 2.3(b) hereof as the Depositary with respect to the Global 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 of non-cash consideration received by Holdings or a Restricted Subsidiary of Holdings in connection with an Asset Sale that is so designated as Designated Non-cash Consideration pursuant to an Officer’s Certificate, setting forth the basis of such valuation, less the amount of cash or Cash Equivalents received in connection with a subsequent sale of or collection on such Designated Non-cash Consideration. A particular item of Designated Non-cash Consideration will no longer be considered to be outstanding when and to the extent it has been paid, redeemed or otherwise retired, sold or disposed of in accordance with this Indenture.

“Designation” has the meaning given to this term in Section 4.16.

“Designation Amount” has the meaning given to this term in Section 4.16.

“Disqualified Equity Interests” of any Person means any class of Equity Interests of such Person that, by its terms, or by the terms of any related agreement or of any security into which it is convertible, puttable or exchangeable (in each case, at the option of the holder thereof), is, or upon the happening of any event or the passage of time would be, required to be redeemed by such Person, at the option of the holder thereof, or matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, in whole or in part, on or prior to the date which is 91 days after the Stated Maturity of the Notes; provided, however, that any class of Equity Interests of such Person that, by its terms, authorizes such Person to satisfy in full its obligations with respect to the payment of dividends or upon maturity, redemption (pursuant to a sinking fund or otherwise) or repurchase thereof or otherwise by the delivery of Equity Interests that are not Disqualified Equity Interests, and that is not convertible, puttable or exchangeable for Disqualified Equity Interests or Indebtedness, will not be deemed to be Disqualified Equity Interests so long as such Person satisfies its obligations with respect thereto solely by the delivery of Equity Interests that are not Disqualified Equity Interests; provided, further, that any Equity Interests that would not constitute Disqualified Equity Interests but for provisions thereof giving holders thereof (or the holders of any security into or for which such Equity Interests are convertible, exchangeable or exercisable) the right to require the Issuers to repurchase or redeem such Equity Interests upon the occurrence of a change in control or an Asset Sale (or similar terms) occurring prior to the 91st day after the Stated Maturity of the Notes shall not constitute Disqualified Equity Interests if the change of control or asset sale provisions applicable to such Equity Interests are no more favorable to such holders than the provisions described under Section 4.13 and Section 4.10, respectively, and such Equity Interests specifically provide that the Issuers will not repurchase or redeem any such Equity Interests pursuant to such provisions prior to the Issuers’ purchase of the Notes as required pursuant to the provisions described under Section 4.13 and Section 4.10, respectively.

“dollars”, “U.S. dollars” or “$” means lawful money of the United States.

“Domestic Subsidiary” means any Restricted Subsidiary of Holdings that was formed under the laws of the United States or any state of the United States or the District of Columbia.

“DTC” means The Depository Trust Company and any successor.

“Eligible Bank” shall mean any commercial bank having, or which is the principal banking subsidiary of a bank holding company having, capital and surplus aggregating in excess of $250.0 million (or in the equivalent thereof in a foreign currency as of the date of determination) and a rating of “A” (or such other similar equivalent rating) or higher by at least one nationally recognized statistical rating organization.

“Equity Interests” of any Person means (1) any and all shares or other equity interests (including Common Stock, Preferred Stock, limited liability company interests, trust units and partnership interests) in such Person and (2) all rights to purchase, warrants or options (whether or not currently exercisable), participations or other equivalents of or interests in (however designated) such shares or other interests in such Person, but excluding from all of the foregoing any debt securities convertible into Equity Interests, regardless of whether such debt securities include any right of participation with Equity Interests.

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

“Excluded Equity Interests” means any and all of the following Equity Interests, whether now owned or hereafter acquired:

(1)            interests in partnerships, joint ventures and non-wholly owned subsidiaries;

(2)            interests in Excluded Subsidiaries;

(3)            margin stock;

(4)            voting Equity Interests of any CFC or any FSHCO in excess of 65% of the issued and outstanding voting Equity Interests of such CFC or FSHCO;

(5)            to the extent applicable law requires that a Subsidiary of the Issuers or any Guarantor issue directors’ qualifying shares, nominee shares or similar shares which are required by applicable law to be held by persons other than the Issuers or such Guarantor, such qualifying shares, nominee shares or similar shares held by Persons other than such Issuers or Guarantor;

(6)            any Equity Interests if, to the extent and for so long as the pledge of such Equity Interests hereunder is prohibited or restricted by any applicable law, including any requirement to obtain consent of any Governmental Authority which has not been obtained (other than to the extent such prohibition would be rendered ineffective under the Uniform Commercial Code or any other applicable law); provided that such Equity Interests shall cease to be Excluded Equity Interests at such time as such prohibition ceases to be in effect; or

(7)            Equity Interests to the extent the same would result in materially adverse tax consequences or materially adverse regulatory consequences, in each case, as reasonably determined by Holdings.

“Excluded Pension Assets” means assets pledged as security for Holdings’ or any of its Subsidiaries’ pension obligations under applicable U.K. law or regulation provided that the aggregate amount of such assets at any time do not have an aggregate book value in excess of $50,000,000.

“Excluded Subsidiary” means any:

(1)            Immaterial Subsidiary;

(2)            Subsidiary that is not a Wholly-Owned Subsidiary of Holdings;

(3)            Unrestricted Subsidiary;

(4)            CFC;

(5)            FSHCO;

(6)            Subsidiary of a CFC or FSHCO;

(7)            Subsidiary that is not either (i) a Domestic Subsidiary or (ii) organized under the laws of a Specified Foreign Jurisdiction;

(8)            Subsidiary if acting as a Guarantor, or its Guarantee, would, and only so long as it would, (a) be prohibited by law or regulation or by any contractual obligation existing on the (but not incurred in anticipation of) Issue Date or on the date such Subsidiary is acquired or organized (as long as, in the case of an acquisition of a Subsidiary, such prohibition did not arise as part of such acquisition) or (b) require a governmental or regulatory consent, approval, license or authorization (unless such consent, approval, license or authorization has been received);

(9)            Subsidiary that is a Captive Insurance Company, not-for-profit Subsidiary or Receivables Subsidiary; and

(10)          any Subsidiary that would be excluded by the Guaranty and Security Principles;

in each case, unless Holdings determines in its sole discretion, upon notice to the Trustee, that any of the foregoing Persons (other than a Subsidiary that is not a Wholly-Owned Subsidiary of Holdings (other than Venator Pigments GmbH & Co. KG)) should not be an Excluded Subsidiary; provided that in the case of any Restricted Subsidiary that is a Foreign Subsidiary not organized in a Specified Foreign Jurisdiction, the jurisdiction of such Foreign Subsidiary is acceptable to the administrative agent under the Term Loan Credit Facility unless the Guarantee to be provided by such Foreign Subsidiary is consistent with the credit support provided by the other Guarantors (or as otherwise may be acceptable to the administrative agent under the Term Loan Credit Facility). Notwithstanding the foregoing, a Restricted Subsidiary may be an Excluded Subsidiary in circumstances where Holdings and the administrative agent under the Term Loan Credit Facility agree that any of the cost, difficulty, burden or consequences of such Restricted Subsidiary providing a Guarantee is excessive in relation to the value afforded thereby.

“Existing Notes” means the Issuers’ 5.75% Senior Notes due 2025 issued pursuant to the Indenture, dated as of July 14, 2017, among the Issuers and Wilmington Trust, National Association, as trustee (as amended, supplemented or modified from time to time).

“Fair Market Value” means, with respect to any asset, the price (after taking into account any liabilities relating to such asset) that would be negotiated in an arm’s-length transaction for cash between a willing seller and a willing and able buyer, neither of which is under any compulsion to complete the transaction as such price is determined in good faith by management of Holdings.

“Foreign Subsidiary” means any Restricted Subsidiary not organized or existing under the laws of the United States, any state thereof or the District of Columbia, and any Restricted Subsidiary of such Restricted Subsidiary.

“FSHCO” means any Subsidiary of Holdings, substantially all of the assets of which consist of Equity Interests or Indebtedness of one or more CFCs.

“GAAP” means generally accepted accounting principles in the United States, as in effect on the Issue Date.

“Global Notes” means the Notes that are in the form of Exhibit A attached hereto issued in global form and registered in the name of the Depositary or its nominee.

“Governmental Authority” means any federal, state, provincial, municipal, local, national, transnational, foreign or other governmental department, commission, board, tribunal, bureau, ministry, court, agency, authority, instrumentality or regulatory, legislative, judicial or arbitral body, or other law, rule or regulation-making entity, or any entity or officer exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to any government or any court.

“Government Securities” means (1) securities that are direct obligations of the United States of America for the timely payment of which its full faith and credit is pledged or (2) securities that are obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the timely payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America which, in either case, are not callable or redeemable at the option of the issuers thereof.

“guarantee” means a direct or indirect guarantee by any Person of any Indebtedness of any other Person and includes any obligation, direct or indirect, contingent or otherwise, of such Person entered into for purposes of assuring in any other manner the obligee of such Indebtedness of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part); “guarantee,” when used as a verb, and “guaranteed” have correlative meanings.

“Guarantee” means, individually, any guarantee of payment of the Notes by a Guarantor pursuant to the terms of this Indenture and any supplemental indenture thereto, and, collectively, all such guarantees.

“Guarantors” means (1) Holdings and (2) each Restricted Subsidiary of Holdings (other than the Issuers and the Post-Closing Guarantors) on the Issue Date that is a party to this Indenture for purposes of providing a Guarantee with respect to the Notes, and each other Person that is required to, or at the election of Holdings, does become a Guarantor by the terms of this Indenture after the Issue Date (including the Post-Closing Guarantors), in each case, until such Person is released from its Guarantee in accordance with the terms of this Indenture.

“Guaranty and Security Principles” has the meaning given to such term in Exhibit D attached hereto.

“Hedging Obligations” of any Person means the obligations of such Person under option, swap, cap, collar, forward purchase or similar agreements or arrangements intended to manage exposure to interest rates or currency exchange rates or commodity prices (including, without limitation, for purposes of this definition, rates for electrical power used in the ordinary course of business), either generally or under specific contingencies.

“Holder” means any registered holder, from time to time, of the Notes.

“Holdings” means Venator Materials PLC, a public limited company incorporated in England and Wales.

“Holdings Guarantee” means the Guarantee of the Notes issued by Holdings.

“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.

“Immaterial Subsidiary” means, as of any date, any Subsidiary that (i) did not, as of the last day of the most recent fiscal quarter of Holdings for which financial statements have been delivered (or were required to be delivered), have assets with a value in excess of 2.5% of the Consolidated Total Assets or revenues representing in excess of 2.5% of total revenues of Holdings and the Restricted Subsidiaries for the period of four consecutive fiscal quarters for which financial statements have been delivered (or were required to be delivered), calculated on a consolidated basis in accordance with GAAP; and (ii) taken together with all Immaterial Subsidiaries as of the last day of the most recent fiscal quarter of Holdings for which financial statements have been delivered (or were required to be delivered), did not have assets with a value in excess of 5.0% of Consolidated Total Assets or revenues representing in excess of 5.0% of total revenues of Holdings and the Restricted Subsidiaries on a consolidated basis for such four-quarter period.

“incur” means, with respect to any Indebtedness or Obligation, incur, create, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to such Indebtedness or Obligation; provided that (1) the Indebtedness of a Person existing at the time such Person becomes a Restricted Subsidiary of Holdings shall be deemed to have been incurred by such Restricted Subsidiary at the time it becomes a Restricted Subsidiary of Holdings, (2) neither the accrual of interest nor the accretion of original issue discount or the accretion or accumulation of dividends on any Equity Interests nor the payment of interest in the form of additional Indebtedness, Disqualified Equity Interests or Preferred Stock shall be deemed to be an incurrence of Indebtedness and (3) any Indebtedness pursuant to any revolving credit or similar facility shall only be incurred at the time any funds are borrowed thereunder.

“Indebtedness” of any Person at any date means, without duplication:

(1)            all liabilities, contingent or otherwise, of such Person for borrowed money (whether or not the recourse of the lender is to the whole of the assets of such Person or only to a portion thereof);

(2)            all obligations of such Person evidenced by bonds, debentures, bankers’ acceptances, notes or other similar instruments;

(3)            all reimbursement obligations of such Person in respect of letters of credit, letters of guaranty and similar credit transactions, in each case only to the extent that the underlying obligation in respect of which the instrument was issued would be treated as Indebtedness;

(4)            all obligations of such Person for the deferred purchase price or deferred consideration or similar arrangements in respect of property or services (other than (i) trade payables and other accrued current liabilities incurred in the ordinary course of such Person’s business and (ii) any earnout obligation until such obligation becomes a liability on the balance sheet of such Person in accordance with GAAP (excluding disclosure on the notes and footnotes thereto)) to the extent the same would be required to be shown as a long-term liability on a balance sheet in accordance with GAAP;

(5)            the greater of the maximum mandatory redemption or repurchase price (not including, in either case, any redemption or repurchase premium) or the principal component or liquidation preference of all obligations of such Person with respect to the redemption, repayment or other repurchase of any Disqualified Equity Interests or, with respect to any Non-Guarantor Subsidiaries, any Preferred Stock (but excluding, in each case, any accrued dividends);

(6)            all Capitalized Lease Obligations of such Person;

(7)            all Indebtedness of others secured by a Lien on any asset of such Person, whether or not such Indebtedness is assumed by such Person;

(8)            all Indebtedness of others guaranteed by such Person to the extent of such guarantee; provided that Indebtedness of Holdings or its Subsidiaries that is guaranteed by Holdings or its Subsidiaries shall only be counted once in the calculation of the amount of Indebtedness of Holdings and its Subsidiaries on a consolidated basis; and

(9)            to the extent not otherwise included in this definition, net Hedging Obligations of such Person.

Notwithstanding the foregoing, the following shall not constitute Indebtedness:

(1)            accrued expenses, intercompany liabilities and trade accounts payable arising in the ordinary course of business;

(2)            any Indebtedness that has been defeased, covenant defeased or satisfied and discharged in accordance with GAAP or pursuant to the deposit of cash or Cash Equivalents (in an amount sufficient to satisfy all obligations relating thereto at maturity or redemption, as applicable, including all payments of interest and premium, if any) in a trust or account created or pledged for the sole benefit of the holders of such Indebtedness, and subject to no other Liens, and in accordance with the other applicable terms of the instrument governing such Indebtedness;

(3)            prepaid or deferred revenue arising in the ordinary course of business;

(4)            purchase price holdbacks arising in the ordinary course of business in respect of a portion of the purchase price of an asset to satisfy unperformed obligations of the seller of such asset;

(5)            earn-out obligations until such obligations are not paid after becoming due and payable; and

(6)            any lease, concession or license of property (or guarantee thereof) which would be considered an operating lease under GAAP as in effect on the Issue Date.

The amount of any Indebtedness which is incurred at a discount to the principal amount at maturity thereof as of any date shall be deemed to have been incurred at the accreted value thereof as of such date. The amount of Indebtedness of any Person at any date shall be the outstanding balance at such date of all unconditional obligations as described above, the maximum liability of such Person for any such contingent obligations at such date and, in the case of clause (7), the lesser of (a) the Fair Market Value of any asset subject to a Lien securing the Indebtedness of others on the date that the Lien attaches and (b) the amount of the Indebtedness secured. For purposes of clause (5), the “maximum mandatory redemption or repurchase price” of any Disqualified Equity Interests that do not have a fixed redemption or repurchase price shall be calculated in accordance with the terms of such Disqualified Equity Interests as if such Disqualified Equity Interests were redeemed or repurchased on any date on which an amount of Indebtedness outstanding shall be required to be determined pursuant to this Indenture.

The term “Indebtedness” excludes any repayment or reimbursement obligation of such Person or any of its Restricted Subsidiaries with respect to Customary Recourse Exceptions, unless and until an event or circumstance occurs that triggers the Person’s or such Restricted Subsidiary’s direct repayment or reimbursement obligation (as opposed to contingent or performance obligations) to the lender or other Person to whom such obligation is actually owed, in which case the amount of such direct payment or reimbursement obligation shall constitute Indebtedness.

Notwithstanding the foregoing, the term “Indebtedness” shall not include any obligations of a Person under a lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which are not required to be classified and accounted for as “finance lease obligations” on the balance sheet of such Person in accordance with GAAP, including, without limitation, Accounting Standards Codification 842 and related accounting rules and regulations, as such may be amended or re-codified from time to time, notwithstanding that GAAP and such accounting rules and regulations (including Accounting Standards Codification 842) may require such operating lease obligations to be recognized on the balance sheet of such Person as a lease liability (along with the related right-of-use asset).

“Indenture” means this Indenture, as amended or supplemented from time to time.

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

“Insolvency or Liquidation Proceeding” means:

(1)            any case or proceeding commenced by or against the Issuers or any other Guarantor under any Bankruptcy Law, any other case or proceeding for the reorganization, recapitalization or adjustment or marshalling of the assets or liabilities of the Issuers or any other Guarantor, any receivership or assignment for the benefit of creditors relating to the Issuers or any other Guarantor or any similar case or proceeding relative to the Issuers or any other Guarantor or its creditors, as such, in each case whether or not voluntary;

(2)            any liquidation, dissolution, marshalling of assets or liabilities or other winding up of or relating to the Issuers or any other Guarantor, in each case whether or not voluntary and whether or not involving bankruptcy or insolvency; or

(3)            any other case or proceeding of any type or nature in which substantially all claims of creditors of the Issuers or any other Guarantor are determined and any payment or distribution is or may be made on account of such claims.

“Intellectual Property” means all patents, patent applications, trademarks, trade names, service marks, copyrights, technology, trade secrets, proprietary information, domain names, know-how and processes necessary for the conduct of Holdings’ or any Restricted Subsidiary’s business.

“Intercreditor Agreements” means the ABL Intercreditor Agreement and the Pari Passu Intercreditor Agreement.

“Investment Grade Rating” means a rating equal to or higher than Baa3 (or the equivalent) by Moody’s or BBB- (or the equivalent) by S&P, or any other equivalent rating by any Rating Agency, in each case, with a stable or better outlook.

“Investments” of any Person means:

(1)            all direct or indirect investments by such Person in any other Person (including Affiliates) in the form of loans, advances or capital contributions or other credit extensions constituting Indebtedness of such other Person, and any guarantee of Indebtedness of any other Person (excluding endorsements of negotiable instruments and documents in the ordinary course of business, extensions of trade credit, advances to customers and suppliers and commission, travel and other similar advances to officers, directors, employees and consultants made in the ordinary course of business);

(2)            all purchases (or other acquisitions for consideration) by such Person of Indebtedness, Equity Interests or other securities of any other Person;

(3)            all other items that would be classified as investments in another Person on a balance sheet of such Person prepared in accordance with GAAP; and

(4)            the Designation of any Subsidiary as an Unrestricted Subsidiary.

Except as otherwise expressly specified in this definition, the amount of any Investment (other than an Investment made in cash) shall be the Fair Market Value thereof on the date such Investment is made. The amount of an Investment pursuant to clause (4) shall be the Designation Amount determined in accordance with Section 4.16. If Holdings or any Restricted Subsidiary sells or otherwise disposes of any Equity Interests of any Restricted Subsidiary, or any Restricted Subsidiary issues any Equity Interests, in either case, such that, after giving effect to any such sale or disposition, such Person is no longer a Subsidiary of Holdings, Holdings shall be deemed to have made an Investment on the date of any such sale or other disposition equal to the Fair Market Value of the Equity Interests of and all other Investments in such Restricted Subsidiary retained. Notwithstanding the foregoing, purchases or redemptions of Equity Interests of Holdings shall be deemed not to be Investments, and guarantees of obligations under leases in the ordinary course of business shall not be deemed Investments. The amount of any Investment outstanding at any time shall be the original cost of such Investment, reduced (at Holdings’ option) by any dividend, distribution, interest payment, return of capital, repayment or other amount or value received in respect of such Investment.

“Issue Date” means May 22, 2020, the date on which the Initial Notes were originally issued.

“Issuers” has the meaning set forth in the preamble of this Indenture and any successor thereto permitted under Section 5.1.

“Junior Lien” means a Lien, junior to the Liens on the Collateral securing both any ABL Obligations and Pari Passu Secured Obligations pursuant to the Junior Lien Intercreditor Agreement, granted by the Issuers or any Guarantor to secure Junior Lien Obligations.

“Junior Lien Documents” means, collectively, any indenture, note, security document and each of the other agreements, documents and instruments providing for or evidencing any Junior Lien Obligations, and any other document or instrument executed or delivered at any time in connection with any Junior Lien Obligations, to the extent such are effective at the relevant time, in each case as each may be amended, restated, supplemented, modified, renewed, extended or refinanced in whole or in part from time to time, and any other credit agreement, indenture or other agreement, document or instrument evidencing, governing, relating to or securing any Junior Lien Indebtedness.

“Junior Lien Indebtedness” means any Indebtedness (other than intercompany Indebtedness owing to Holdings or its Affiliates) of the Issuers or any Guarantor (including any Refinancing Indebtedness in respect thereof) that is secured by a Junior Lien pursuant to a Permitted Lien described under clause (13)(iii) or (28) of the definition thereof; provided that, in the case of any Indebtedness referred to in this definition:

(1)            such Indebtedness does not mature and does not have any mandatory or scheduled payments or sinking fund obligations prior to the Stated Maturity of the Notes (except as a result of a customary change of control or asset sale repurchase offer provisions);

(2)            on or before the date on which the first such Indebtedness is incurred by the Issuers or any Guarantor, the Issuers shall deliver to each Pari Passu Notes Lien Representative and ABL Representative complete copies of each applicable Junior Lien Document (which shall provide that each secured party with respect to such Indebtedness shall be subject to and bound by the Junior Lien Intercreditor Agreement), along with an Officer’s Certificate certifying as to such Junior Lien Documents and identifying the obligations constituting Junior Lien Obligations;

(3)            on or before the date on which any such Indebtedness is incurred by the Issuers or any Guarantor, such Indebtedness is designated by the Issuers, in an Officer’s Certificate delivered to the Junior Lien Representative and each Pari Passu Notes Lien Representative and ABL Representative, as “Junior Lien Indebtedness” under this Indenture;

(4)            a Junior Lien Representative is designated with respect to such Indebtedness and executes and delivers the Junior Lien Intercreditor Agreement (including, as applicable, a joinder thereto) on behalf of itself and all holders of such Indebtedness; and

(5)            all other requirements set forth in the Junior Lien Intercreditor Agreement as to the confirmation, grant or perfection of the Liens of the holders of Junior Lien Indebtedness to secure such Indebtedness or Obligations in respect thereof are satisfied.

“Junior Lien Intercreditor Agreement” means an intercreditor agreement which subordinates the Lien on the Collateral of the holders of the Junior Lien Indebtedness to the Lien on the Collateral of each of the holders of ABL Obligations and Pari Passu ABL Lien Indebtedness and the holders of the Pari Passu Secured Obligations and the terms of which are consistent with market terms (in the view of the ABL Collateral Agent and the Term Loan Collateral Agent or, if the ABL Collateral Agent or the Term Loan Collateral Agent has been replaced, as applicable, any other agent for the holders of ABL Obligations or Pari Passu Secured Obligations, respectively) governing security arrangements for the subordination and sharing of liens or arrangements relating to the distribution of payments, as applicable, at the time the intercreditor agreement is proposed to be established in light of the type of Indebtedness subject thereto.

“Junior Lien Obligations” means Junior Lien Indebtedness and all other Obligations in respect thereof.

“Junior Lien Representative” means in the case of any series of Junior Lien Indebtedness, the trustee, agent or representative of the holders of such series of Junior Lien Indebtedness who is appointed as a representative of the Junior Lien Indebtedness (for purposes related to the administration of security interests) pursuant to the applicable Junior Lien Document governing such series of Junior Lien Indebtedness, together with its successors and assigns in such capacity.

“Lien” means, with respect to any asset, any mortgage, deed of trust, lien (statutory or other), pledge, hypothecation, hypothec, easement, charge, security interest or other encumbrance of any kind or nature in respect of such asset, whether or not filed, recorded, registered, published or otherwise perfected or rendered opposable to third parties under applicable law, including any conditional sale or other title retention agreement, any option or other agreement to sell or give a lien or security interest in and any financing lease having substantially the same economic effect as the foregoing.

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

“Mortgaged Properties” means all Owned Material Real Property, as to which the Notes Collateral Agent for the benefit of the Holders shall be granted a Lien pursuant to the Mortgages.

“Mortgages” means each of the mortgages, deeds of trust and deeds to secure debt or other security document made by the Issuers or any Guarantor, in form and substance substantially similar to the mortgage, deed of trust or deed to secure debt delivered to the Term Loan Collateral Agent under the Term Loan Credit Facility, as the same may be amended, supplemented, replaced or otherwise modified from time to time.

“New York Uniform Commercial Code” means the Uniform Commercial Code as in effect from time to time in the State of New York.

“Net Available Proceeds” means, with respect to any Asset Sale, the proceeds thereof in the form of cash or Cash Equivalents received by Holdings or any of its Restricted Subsidiaries from such Asset Sale, net of:

(1)            brokerage commissions and other fees and expenses (including fees, discounts and expenses of legal counsel, accountants and investment banks, consultants and placement agents) of such Asset Sale and other reasonable costs incurred in preparing such asset for sale and any relocation expenses incurred as a result thereof;

(2)            provisions for taxes payable (including any withholding or other taxes paid or reasonably estimated to be payable in connection with the transfer to Holdings of such proceeds from any Restricted Subsidiary that received such proceeds) as a result of such Asset Sale (after taking into account any available tax credits or deductions and any tax sharing arrangements);

(3)            amounts required to be paid to any Person (other than Holdings or any Restricted Subsidiary) (a) owning a beneficial interest in the assets subject to the Asset Sale or (b) having a Lien thereon that has a higher priority than the Liens securing the Notes and the Guarantees on the assets that were the subject of the Asset Sale and that is required (other than pursuant to Section 4.10) to be paid as a result of such transaction;

(4)            payments of unassumed liabilities (not constituting Indebtedness) relating to the assets sold at the time of, or within 30 days after the date of, such Asset Sale;

(5)            appropriate amounts to be provided by Holdings or any Restricted Subsidiary, as the case may be, as a reserve required in accordance with GAAP against any adjustment in the sale price of such asset or assets or liabilities associated with such Asset Sale and retained by Holdings or any Restricted Subsidiary, as the case may be, after such Asset Sale, including pensions and other post-employment benefit liabilities, liabilities related to environmental matters and liabilities under any indemnification obligations associated with such Asset Sale; provided, however, that any amounts remaining after adjustments, revaluations or liquidations of such reserves shall constitute Net Available Proceeds; and

(6)            any portion of cash proceeds that Holdings determines in good faith should be reserved for post-closing adjustments, it being understood and agreed that on the day that all such post-closing adjustments have been determined, the amount (if any) by which the reserved amount in respect of such Asset Sale exceeds the actual post-closing adjustments payable by Holdings or any of its Restricted Subsidiaries will constitute Net Available Proceeds on such date.

“Non-Guarantor Subsidiary” means any Restricted Subsidiary of Holdings (other than the Issuers) that is not a Subsidiary Guarantor.

“Non-Recourse Debt” means Indebtedness of an Unrestricted Subsidiary:

(1)            as to which neither Holdings nor any Restricted Subsidiary (a) provides credit support of any kind (including any undertaking, agreement or instrument that would constitute Indebtedness), except for Customary Recourse Exceptions, (b) is directly or indirectly liable as a guarantor or otherwise or (c) constitutes the lender; and

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

“Notes” means the Initial Notes and any Additional Notes. The Initial Notes and the Additional Notes, if any, shall be treated as a single class for all purposes under this Indenture.

“Notes Collateral Agent” has the meaning set forth in the preamble of this Indenture and any successor thereto.

“Notes Documents” means, collectively, this Indenture, the Notes, the Security Documents and each of the other agreements, documents and instruments providing for or evidencing any other Pari Passu Secured Obligations, and any other document or instrument executed or delivered at any time in connection with any Pari Passu Secured Obligations, to the extent such are effective at the relevant time, in each case, as each may be amended, restated, supplemented, modified, renewed, extended or refinanced in whole or in part from time to time, and any other credit agreement, indenture or other agreement, document or instrument evidencing, governing, relating to or securing any Pari Passu Notes Lien Indebtedness, and for purposes of the ABL Intercreditor Agreement, “Loan Documents” shall mean Notes Documents.

“Obligation” means any principal, interest, penalties, fees, indemnification, reimbursements, costs, expenses, damages and other liabilities payable under the documentation governing any Indebtedness and guarantees of payment of such Obligations under any Notes Documents or ABL Documents or documents governing another Debt Facility (including the Term Loan Credit Facility), as the case may be.

“Offer to Purchase” means, as applicable, a Change of Control Offer, Collateral Disposition Offer or Net Proceeds Offer.

“Offering Memorandum” means the offering memorandum, dated May 8, 2020, related to the offer and sale of the Notes.

“Officer” means any of the following of the Issuers or any Guarantor: the Chairman of the Board of Directors; any Manager; the Chief Executive Officer; the Chief Financial Officer; the President; any Vice President; the Treasurer; or the Secretary.

“Officer’s Certificate” means a certificate signed by an Officer.

“Opinion of Counsel” means a written opinion from legal counsel acceptable to the Trustee. The counsel may be an employee of or counsel to Holdings or the Issuers.

“Owned Material Real Property” means any Real Property owned in fee by any of the Issuers or any Guarantor that has a fair market value (as determined in good faith by an Officer of Holdings) of $15.0 million or more, other than (i) any Real Property that is a U.S. Excluded Asset, (ii) that would be excluded from the Collateral pursuant to the Guaranty and Security Principles, (iii) Real Property located at 302 Midway Road, Freeport, TX 77541 or (iv) as otherwise agreed by the Term Loan Collateral Agent.

“Pari Passu ABL Lien Indebtedness” means any Indebtedness that is permitted to have Pari Passu Lien Priority relative to the ABL Obligations with respect to the Collateral and is not secured by any other assets; provided that, in each case, an authorized representative of the holders of such Indebtedness shall have executed a joinder to the ABL Intercreditor Agreement in accordance with the terms thereof (or otherwise satisfactory to the ABL Collateral Agent and the Term Loan Collateral Agent).

“Pari Passu Indebtedness” means any Indebtedness of the Issuers or any Guarantor that is not Subordinated Indebtedness (including the Existing Notes).

“Pari Passu Intercreditor Agreement” means the Pari Passu Intercreditor Agreement, dated as of the Issue Date, among Holdings, the Issuers, the other Guarantors, the Notes Collateral Agent and the Term Loan Collateral Agent, as amended, supplemented or modified from time to time.

“Pari Passu Lien Net Leverage Ratio” means, at any time of determination, the ratio of (i) the outstanding principal amount of (x) Indebtedness incurred pursuant to Section 4.9(b)(1), Section 4.9(b)(2)(a) and Section 4.9(b)(2)(b) plus (y) any other Pari Passu ABL Lien Indebtedness and Pari Passu Notes Lien Indebtedness to (ii) the Consolidated Cash Flow of Holdings during the most recent Four-Quarter Period ending on or prior to the date of determination; provided that such Pari Passu Lien Net Leverage Ratio shall be determined on a pro forma basis in a manner consistent with the definition of Consolidated Interest Coverage Ratio. The amount of Indebtedness in clause (i) may be calculated net of Unrestricted Cash.

“Pari Passu Lien Priority” means relative to specified Indebtedness and other obligations having equal Lien priority to (i) the Notes and the Guarantees on the Collateral, (ii) the Term Loan Credit Facility on the Collateral or (iii) the ABL Credit Facility on the Collateral, as applicable.

“Pari Passu Notes Lien Documents” means any credit agreement (including the Term Loan Credit Facility), note purchase agreement, indenture (including this Indenture) or other agreement related thereto and all other loan or note documents, collateral or security documents, notes, guarantees, instruments and agreements governing or evidencing, or executed or delivered in connection with, any Pari Passu Notes Lien Indebtedness, as such agreements or instruments may be amended, supplemented, modified, restated, replaced, renewed, refunded, restructured, increased or refinanced from time to time.

“Pari Passu Notes Lien Indebtedness” means (i) the Term Loan Obligations, (ii) any Additional Notes and (iii) any other Indebtedness that has a Stated Maturity date that is equal to or longer than the Stated Maturity date of the Notes and that is permitted to have Pari Passu Lien Priority relative to the Notes and the Guarantees with respect to the Collateral and is not secured by any other assets; provided that, in each case, an authorized representative of the holders of such Indebtedness (other than the Term Loan Obligations and any Additional Notes) shall have executed a joinder to the Pari Passu Intercreditor Agreement in accordance with the terms thereof (or otherwise satisfactory to the ABL Collateral Agent and the Term Loan Collateral Agent).

“Pari Passu Notes Lien Representative” means (i) the Notes Collateral Agent, in the case of this Indenture and the Notes, (ii) the Term Loan Collateral Agent, in the case of the Term Loan Credit Facility, and (iii) in the case of any other series of Pari Passu Notes Lien Indebtedness, the trustee, agent or representative of the holders of such series of Pari Passu Notes Lien Indebtedness who is appointed as a representative of such series of Pari Passu Notes Lien Indebtedness (for purposes related to the administration of the applicable security documents related thereto) pursuant to the indenture, credit agreement or other agreement governing such series of Pari Passu Notes Lien Indebtedness.

“Pari Passu Priority Collateral” means all other Collateral (excluding U.S. Excluded Assets, Excluded Pension Assets and other assets excluded by the Guaranty and Security Principles) other than ABL Priority Collateral.

“Pari Passu Secured Documents” means the credit, guarantee and security documents governing the Pari Passu Secured Obligations, including, without limitation, the related Security Documents and Intercreditor Agreements.

“Pari Passu Secured Obligations” means, subject to the terms and conditions in the Pari Passu Intercreditor Agreement, (i) all Obligations under this Indenture and the Notes and (ii) all Pari Passu Notes Lien Indebtedness.

“Participant” means, with respect to the Depositary, a Person who has an account with the Depositary.

“Paying Agent” means any Person (including Holdings, the Issuers or one of their Restricted Subsidiaries acting as Paying Agent) authorized by the Issuers to pay the principal of, premium, if any, or interest on any Notes on behalf of the Issuers.

“Payment Default” means any default in payment of amounts when due on the applicable Indebtedness, without giving effect to any grace period.

“Perfection Certificate” means the Perfection Certificate with respect to the Issuers and the Guarantors organized under the laws of the United States and Canada in a form substantially similar to that delivered on the Issue Date.

“Permitted Business” means the businesses engaged in by Holdings and its Subsidiaries on the Issue Date as described in the Offering Memorandum and businesses that are reasonably related, complementary, incidental, ancillary or similar thereto or reasonable extensions thereof.

“Permitted Holders” means each of (a) managers and members of management of Holdings (or any parent entity or Public Company specified in clause (c) of this definition which is a direct or indirect parent of Holdings) or its Subsidiaries that have ownership interests in Holdings (or such parent entity or Public Company specified in clause (c) of this definition which is a direct or indirect parent of Holdings), (b) any group (within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act) of which the Persons described in clause (a) of this definition are members; provided that, without giving effect to the existence of such group or any other group, the Persons described in clause (a), collectively, beneficially own Voting Stock representing 50% or more of the total voting power of the Voting Stock of Holdings (or such parent entity specified in clause (c)(i) of this definition) then held by such group, and (c)(i) any direct or indirect parent of Holdings so long as a Permitted Holder pursuant to clauses (a) or (b) of this definition holds 50% or more of the Voting Stock of such direct or indirect parent of Holdings and (ii) any Public Company (or Wholly-Owned Subsidiary of such Public Company) to the extent and until such time as any Person or group (other than a Permitted Holder under clause (a) or (b) of this definition) is deemed to be or become a beneficial owner of Voting Stock of such Public Company representing more than 50% of the total voting power of the Voting Stock of such Public Company.

“Permitted Indebtedness” has the meaning set forth in Section 4.9(b).

“Permitted Investment” means:

(1)            Investments by Holdings or any Restricted Subsidiary in (a) any Restricted Subsidiary or (b) any Person that will become immediately after such Investment a Restricted Subsidiary or that will merge or consolidate into or dispose of all or substantially all of its property or assets to, or is liquidated into, Holdings or any Restricted Subsidiary and any Investment held by any such Person at such time that was not incurred in contemplation of such acquisition, merger or consolidation;

(2)            Investments in Holdings or in any Restricted Subsidiary;

(3)            loans and advances to directors, employees, consultants and officers of Holdings and its Restricted Subsidiaries (i) in the ordinary course of business (including moving, payroll, travel and entertainment related advances) (other than any loans or advances to any director or executive officer (or equivalent thereof) that would be in violation of Section 402 of the Sarbanes Oxley Act), (ii) in respect of moving related expenses incurred in connection with any closing or consolidation of any facility or office and (iii) in an aggregate principal amount not to exceed the greater of (a) $5.0 million and (b) 0.2% of Consolidated Total Assets at any time outstanding (calculated without regard to write-downs or write-offs thereof after the date made);

(4)            Hedging Obligations entered into in the ordinary course of business and not for the purpose of speculation;

(5)            Investments in cash and Cash Equivalents;

(6)            Investments in securities of trade creditors or customers received pursuant to any bankruptcy, workout, plan of reorganization or similar arrangement upon the bankruptcy or insolvency of such trade creditors or customers or received in compromise, settlement or resolution of Indebtedness, claims, litigation, arbitration or other disputes with such parties and, in each case, extensions, modifications and amendments thereof;

(7)            Investments made by Holdings or any Restricted Subsidiary as a result of consideration received in connection with an Asset Sale made in compliance with Section 4.10 or a disposition of assets that is not an Asset Sale;

(8)            any Investments in prepaid expenses, negotiable instruments held for collection, surety and performance bonds and worker’s compensation, and lease, utility, tax, performance and other similar deposits and prepaid expenses in the ordinary course of business;

(9)            stock, obligations or securities received in settlement of debts created in the ordinary course of business and owing to Holdings or any Restricted Subsidiary or in satisfaction of judgments;

(10)          Investments in (x) Viance, LLC and Louisiana Pigment Company (and any successor thereof) in an amount, net of any Investments by Viance, LLC and Louisiana Pigment Company in Holdings or any Restricted Subsidiary, not to exceed the greater of (a) $25.0 million and (b) 1.0% of Consolidated Total Assets as of the date any such Investment is made and (y) other joint ventures in an amount not to exceed the greater of (a) $50.0 million and (b) 2.0% of Consolidated Total Assets as of the date any such Investment is made;

(11)          guarantees of Indebtedness of Holdings or any of its Restricted Subsidiaries permitted in accordance with Section 4.9;

(12)          repurchases of or other Investments in the Notes;

(13)          advances or extensions of credit to customers or suppliers in the ordinary course of business and payable or dischargeable in accordance with customary trade terms; provided that such trade terms may include such concessionary trade terms as Holdings or the applicable Restricted Subsidiary deems reasonable under the circumstances;

(14)          Investments existing on, or made pursuant to commitments in effect on, the Issue Date and any Investment consisting of an extension, modification, renewal or replacement thereof under the terms of agreements in existence on the Issue Date;

(15)          Investments the payment for which consists of Equity Interests (exclusive of Disqualified Equity Interests) of Holdings and/or Investments made with the net cash proceeds from the sale of Equity Interests (exclusive of Disqualified Equity Interests) of Holdings; provided, however, that in either case such Equity Interests will not increase the amount available for Restricted Payments under the Restricted Payments Basket;

(16)          other Investments in any Person having an aggregate Fair Market Value (measured on the date each such Investment was made and without giving effect to subsequent changes in value) that, when taken together with all other Investments made pursuant to this clause (16) since the Issue Date and then outstanding (net of returns of capital and sales, liquidations and redemptions of Investments), do not exceed the greater of (a) $50.0 million and (b) 2.0% of Holdings’ Consolidated Total Assets determined at the time of investment; provided that if any Investment made pursuant to this clause (16) is made in any Person that is not a Restricted Subsidiary at the time of the Investment but becomes a Restricted Subsidiary after such date, such investment will thereafter be deemed to have been made pursuant to clause (1) above and not this clause (16) for as long as the Person continues to be a Restricted Subsidiary;

(17)          performance guarantees of any trade or non-financial operating contract (other than such contract that itself constitutes Indebtedness) in the ordinary course of business;

(18)          Receivables owing to Holdings or any Restricted Subsidiary if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms; provided, however, that such trade terms may include such concessionary trade terms as Holdings or any such Restricted Subsidiary deems reasonable under the circumstances;

(19)          any Investment in a Receivables Subsidiary or any Investment by a Receivables Subsidiary in any other Person, in each case in connection with a Qualified Receivables Financing, including Investments of funds held in accounts permitted or required by the arrangements governing such Qualified Receivables Financing or any related Indebtedness;

(20)          intercompany Investments among Holdings and its Restricted Subsidiaries (including intercompany Indebtedness);

(21)          accounts receivable, security deposits and prepayments and other credits granted or made in the ordinary course of business and any Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and others, including in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with or judgments against, such account debtors and others, in each case, in the ordinary course of business;

(22)          Investments acquired as a result of a foreclosure by Holdings or any Restricted Subsidiary with respect to any secured Investments or other transfer of title with respect to any secured Investment in default;

(23)          intercompany loans among Non-Guarantor Subsidiaries and Guarantees by Non-Guarantor Subsidiaries permitted by Section 4.9;

(24)          acquisitions of obligations of one or more officers or other employees of any direct or indirect parent, the Issuers or any Subsidiary in connection with such officer’s or employee’s acquisition of Equity Interests of such direct or indirect parent, so long as no cash is actually advanced by Holdings or any Restricted Subsidiary to such officers or employees in connection with the acquisition of any such obligations;

(25)          advances in the form of a prepayment of expenses, so long as such expenses are being paid in accordance with customary trade terms of Holdings or any Restricted Subsidiary;

(26)          intercompany current liabilities owed to Unrestricted Subsidiaries or joint ventures incurred in the ordinary course of business in connection with the cash management operations of Holdings and its Subsidiaries;

(27)          Investments for the establishment and maintenance (including the establishment and maintenance of required reserves in an amount not to exceed the reserves reasonably determined by an independent actuary and in any event not less than any amount that may be required from time to time in accordance with applicable statutes or other applicable law) of a captive insurance program that is reasonable and customary for companies engaged in the same or similar businesses; and

(28)          any Investment, if (a) no Default or Event of Default shall have occurred and be continuing immediately prior to making such Investment or would result therefrom and (b) the Total Net Leverage Ratio, on a pro forma basis, is less than or equal to 2.70 to 1.00.

In determining whether any Investment is a Permitted Investment, Holdings may allocate or reallocate all or any portion of an Investment among the clauses of this definition and any of the provisions of the covenant described under Section 4.7.

“Permitted Liens” means the following types of Liens:

(1)            Liens for taxes, assessments or governmental charges or levies not yet due and payable or delinquent or that are being contested in good faith by appropriate proceedings; provided that adequate reserves with respect thereto are maintained on the books of Holdings or its Restricted Subsidiaries, as the case may be, in conformity with GAAP;

(2)            Liens in respect of property of Holdings or any Restricted Subsidiary imposed by law or contract which were not incurred or created to secure Indebtedness for borrowed money, such as carriers’, warehousemen’s, materialmen’s, landlords’, workmen’s, suppliers’, repairmen’s and mechanics’ Liens and other similar Liens arising in the ordinary course of business, and which do not in the aggregate materially detract from the value of the property of Holdings or its Restricted Subsidiaries, taken as a whole, and do not materially impair the use thereof in the operation of the business of Holdings and its Restricted Subsidiaries, taken as a whole;

(3)            (i) pledges or deposits made in connection therewith in the ordinary course of business in connection with workers’ compensation including as required under the Federal Employers Liability Act, unemployment insurance, road transportation and other types of social security regulations, (ii) Liens on amounts deposited to secure Holdings’ and any Restricted Subsidiaries’ obligations in connection with pension liabilities or partial retirement liabilities (Altersteilzeitverpflichtungen) pursuant to section 8a German Partial Retirement Act (Altersteilzeitgesetz) or in connection with time credits (Wertguthaben) pursuant to sections 7b and 7e German Social Code IV (Sozialgesetzbuch IV) and (iii) other Liens in connection with pension obligations;

(4)            Liens (i) incurred in the ordinary course of business to secure the performance of tenders, bids, trade contracts, stay and customs bonds, leases, statutory obligations, surety and appeal bonds, statutory bonds, government contracts, performance and return money bonds and other similar obligations (exclusive of obligations for the payment of borrowed money), (ii) incurred in the ordinary course of business to secure liability for premiums to insurance carriers or self-insurance arrangement obligations or (iii) deposits as security for contested taxes or import duties or for the payment of rent, in each case, in the ordinary course of business;

(5)            Liens upon specific items of inventory or other goods and proceeds of any Person securing such Person’s obligations in respect of bankers’ acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;

(6)            Liens arising out of judgments or awards not resulting in a Default or an Event of Default and notices of lis pendens and associated rights related to litigation being contested in good faith by appropriate proceedings and in respect of which Holdings or any affected Restricted Subsidiary has set aside on its books reserves in accordance with GAAP with respect thereto;

(7)            survey exceptions and such matters as an accurate survey would disclose, easements, trackage rights, leases (other than Capitalized Lease Obligations), licenses, special assessments, rights of way, covenants, conditions, restrictions and declarations on or with respect to the use of Real Property, servicing agreements, development agreements, site plan agreements and title defects or irregularities and other similar encumbrances incurred in the ordinary course of business in each case that are of a minor nature and that, individually and in the aggregate, do not interfere in any material respect with the ordinary conduct of the business of Holdings or any Restricted Subsidiary;

(8)            Liens securing reimbursement obligations with respect to commercial letters of credit which encumber documents and other assets relating to such letters of credit and products and proceeds thereof;

(9)            Liens encumbering deposits made to secure obligations arising from statutory, regulatory, contractual or warranty requirements of Holdings or any Restricted Subsidiary, including rights of offset and setoff, and deposits made in the ordinary course of business to secure liability to insurance carriers;

(10)          bankers’ Liens, rights of setoff and other similar Liens existing solely with respect to cash and Cash Equivalents on deposit in one or more accounts maintained by Holdings or any Restricted Subsidiary, in each case granted in the ordinary course of business in favor of the bank or banks with which such accounts are maintained, securing amounts owing to such bank with respect to cash management and operating account arrangements, including those involving pooled accounts and netting arrangements or rights of set-off relating to purchase orders and other agreements entered into with customers of Holdings or any Restricted Subsidiary in the ordinary course of business;

(11)          any interest or title of a lessor or sublessor under any lease or sublease entered into by Holdings or any Restricted Subsidiary in accordance with this Indenture;

(12)          the filing of Uniform Commercial Code financing statements or PPSA financing statements or equivalent statements in any other jurisdiction solely as a precautionary measure;

(13)          (i) Liens securing the Notes and any Guarantee issued on the Issue Date and any Obligations owing to the Trustee or the Notes Collateral Agent under this Indenture, the Security Documents or the Intercreditor Agreements, (ii) Liens on Collateral securing additional Pari Passu Notes Lien Indebtedness or Junior Lien Indebtedness permitted to be incurred and then outstanding pursuant to Section 4.9(b)(1) or Section 4.9(b)(2)(b) and (iii) Liens on Collateral securing Junior Lien Indebtedness permitted to be incurred and then outstanding pursuant to Section 4.9(b)(1), Section 4.9(b)(2)(b) or Section 4.9(b)(2)(c);

(14)          Liens (other than on Collateral) securing Hedging Obligations entered into for bona fide hedging purposes of Holdings or any Restricted Subsidiary and not for the purpose of speculation;

(15)          leases, subleases, licenses or sublicenses granted to others in the ordinary course of business, which do not materially interfere with the ordinary conduct of the business of Holdings and its Restricted Subsidiaries;

(16)          Liens in favor of the Issuers or a Guarantor;

(17)          Liens on Collateral securing Indebtedness and other obligations under Debt Facilities (including, for clarity, any Pari Passu Indebtedness or Junior Lien Indebtedness) incurred and then outstanding pursuant to Section 4.9(b)(1), including, without limitation, loans, obligations in respect of letters of credit, related Hedging Obligations and related Specified Cash Management Agreements;

(18)          Liens arising pursuant to Purchase Money Indebtedness incurred and then outstanding pursuant to Section 4.9(b)(8); provided that (i) the Indebtedness secured by any such Lien (including refinancings thereof) does not exceed 100.0% of the cost of the property being acquired, leased, constructed, improved or developed at the time of the incurrence of such Indebtedness and (ii) any such Liens attach only to the property being financed pursuant to such Purchase Money Indebtedness (plus improvements, accessions, proceeds, replacements or dividends or distributions in respect thereof) and do not encumber any other property of Holdings or any Restricted Subsidiary;

(19)          Liens securing Acquired Indebtedness permitted to be incurred under this Indenture incurred and then outstanding pursuant to Section 4.9(b)(15); provided that such Indebtedness was not incurred in connection with, or in contemplation of, such Person becoming a Restricted Subsidiary or being acquired or merged into Holdings or a Restricted Subsidiary of Holdings and the Liens do not extend to assets not subject to such Lien at the time of acquisition (plus improvements, accessions, proceeds, replacements or dividends or distributions in respect thereof);

(20)          Liens on property or assets of a Person (including shares of stock owned by such Person) existing at the time such Person is acquired or amalgamated or merged with or into or consolidated with Holdings or any Restricted Subsidiary or at the time such Person becomes a Restricted Subsidiary or at the time such property or assets are otherwise acquired by Holdings or such Restricted Subsidiary (and not created in anticipation or contemplation thereof); provided that such Liens do not extend to property not subject to such Liens at the time of acquisition (plus improvements, accessions, proceeds, replacements or dividends or distributions in respect thereof) (other than after-acquired property that is affixed or appurtenant thereto or incorporated into the property covered by such Lien and after-acquired property of such Person subject to a Lien securing such Indebtedness, which Indebtedness requires or includes a pledge of after-acquired property of such Person);

(21)          Liens on and pledges of the Equity Interests of any Unrestricted Subsidiary or any joint venture owned by Holdings or any Restricted Subsidiary of Holdings to the extent securing Non-Recourse Debt or other Indebtedness of such Unrestricted Subsidiary or joint venture;

(22)          Liens arising from the deposit of funds or Cash Equivalents or securities in trust for the purpose of decreasing or defeasing Indebtedness so long as such deposit of funds or securities and such decreasing or defeasing of Indebtedness are permitted under Section 4.9;

(23)          licenses of Intellectual Property granted by Holdings or any Restricted Subsidiary in the ordinary course of business and not interfering in any material respect with the ordinary conduct of the business of Holdings or such Restricted Subsidiary;

(24)          Liens arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into by Holdings or any Restricted Subsidiary in the ordinary course of business;

(25)          Liens in favor of the Trustee as provided for in this Indenture on money or property held or collected by the Trustee in its capacity as Trustee;

(26)          Liens securing Indebtedness of Non-Guarantor Subsidiaries incurred and then outstanding pursuant to Section 4.9(b)(16) or Section 4.9(b)(17); provided that such Liens extend only to the assets of such Non-Guarantor Subsidiaries;

(27)          Liens existing on the Issue Date (other than Liens permitted under clauses (13) and (17) above);

(28)          Liens on Equity Interests of Unrestricted Subsidiaries securing Indebtedness of Unrestricted Subsidiaries or obligations under agreements in respect of Unrestricted Subsidiaries;

(29)          Liens disclosed by the title insurance policies delivered on or subsequent to the Issue Date and any replacement, extension or renewal of any such Liens (so long as the Indebtedness and other obligations secured by such replacement, extension or renewal Liens are permitted by this Indenture); provided that such replacement, extension or renewal Liens do not cover any property other than the property that was subject to such Liens prior to such replacement, extension or renewal;

(30)          the prior rights of consignees and their lenders under consignment arrangements entered into in the ordinary course of business;

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

(32)          Liens securing insurance premium financing arrangements;

(33)          Liens on vehicles or equipment of Holdings or any of the Restricted Subsidiaries granted in the ordinary course of business;

(34)          Liens (a) of a collection bank arising under Section 4-210 of the UCC, or any comparable or successor provision, on items in the course of collection; (b) attaching to pooling, commodity trading accounts or other commodity brokerage accounts incurred in the ordinary course of business; or (c) in favor of banking or other financial institutions or entities, or electronic payment service providers, arising as a matter of law encumbering deposits (including the right of set-off) and which are within the general parameters customary in the banking or finance industry (including, in relation to bank accounts held in Germany, Liens arising under the general terms and conditions of banks (Allgemeine Geschäftsbedingungen der Banken und Sparkassen));

(35)          Liens securing additional obligations (including, for clarity, any Pari Passu Indebtedness or Junior Lien Indebtedness) in an aggregate outstanding principal amount not to exceed the greater of (a) $75.0 million and (b) 3.0% of Consolidated Total Assets as of the date such Liens are first created;

(36)          any Liens arising by operation of law (sections 22, 204 of the German Transformation Act (Umwandlungsgesetz)) in favor of creditors as a consequence of a merger or conversion permitted under this Indenture;

(37)          Liens on accounts receivable and related assets of the type specified in the definition of Qualified Receivables Financing securing Indebtedness incurred in accordance with Section 4.9(b)(23);

(38)          Liens on cash collateral supporting letters of credit entered into in the ordinary course of business; and

(39)          any Lien renewing, extending, refinancing or refunding a Lien permitted by clauses (13), (18), (19), (20), (26) and (27) above and this clause (39); provided that such Liens (i) do not extend to any additional assets (other than improvements, accessions, proceeds, replacements or dividends or distributions in respect thereof) and the amount of such Indebtedness is not increased except as necessary to pay premiums or expenses incurred in connection with such refinancing and (ii) have no greater priority relative to the Notes and the Guarantees and the holders of such Indebtedness secured by such Liens have no greater intercreditor rights relative to the Notes and the Guarantees than the original Liens and related Indebtedness and the holders thereof.

“Person” means any individual, corporation, partnership, limited liability company, joint venture, incorporated or unincorporated association, joint-stock company, trust, mutual fund trust, unincorporated organization or government or other agency or political subdivision thereof or other legal entity of any kind.

“Plan of Liquidation” with respect to any Person, means a plan that provides for, contemplates or the effectuation of which is preceded or accompanied by (whether or not substantially contemporaneously, in phases or otherwise):

(1)            the sale, lease, conveyance or other disposition of all or substantially all of the assets of such Person otherwise than as an entirety or substantially as an entirety; and

(2)            the distribution of all or substantially all of the proceeds of such sale, lease, conveyance or other disposition and all or substantially all of the remaining assets of such Person to holders of Equity Interests of such Person.

“Post-Closing Guarantors” means (1) the Spanish Subsidiary, (2) Venator France SAS, Venator Chemicals France SAS, Venator International France SAS and Venator Pigments France SAS, each an entity organized under the laws of France and (3) Venator Pigments GmbH & Co. KG, an entity organized under the laws of the Federal Republic of Germany.

“PPSA” means the Personal Property Security Act (Ontario) (or any successor statute) or similar legislation (including, without limitation, the Civil Code of Quebec) of any other jurisdiction the laws of which are required by such legislation to be applied in connection with the issuance, perfection, enforcement, validity or effect of security interests and hypothecs.

“Preferred Stock” means, with respect to any Person, any and all preferred or preference stock or other Equity Interests (however designated) of such Person whether now outstanding or issued after the Issue Date that is preferred as to the payment of dividends upon liquidation, dissolution or winding up.

“principal” means, with respect to the Notes, the principal of, and premium, if any, on the Notes.

“Public Company” means any Person with a class or series of Voting Stock that is traded on a stock exchange or in the over-the-counter market.

“Purchase Money Indebtedness” means Indebtedness, including Capitalized Lease Obligations, mortgage financings, construction financings, or purchase money obligations, of Holdings or any Restricted Subsidiary incurred in connection with the purchase of, or for the purpose of financing the purchase of, all or any part of the purchase price, lease or cost of design, construction, installation, improvement, deployment, refurbishment or modification of property (real or personal), plant or equipment or furniture, fixtures, equipment or other fixed or capital assets, in each case, used in the business of Holdings or any Restricted Subsidiary or the cost of installation, construction or improvement thereof, and in each case whether incurred through the direct purchase of assets or through the Capital Stock of any Person owning such assets, and Indebtedness arising from the conversion of the obligations of Holdings or any Restricted Subsidiary under or pursuant to any “synthetic lease” transactions to on-balance sheet Indebtedness of Holdings or any Restricted Subsidiary.

“QIB” means a “qualified institutional buyer” as defined in Rule 144A under the Securities Act.

“Qualified Equity Interests” of any Person means Equity Interests of such Person other than Disqualified Equity Interests; provided that such Equity Interests shall not be deemed Qualified Equity Interests to the extent sold or owed to a Subsidiary of such Person or financed, directly or indirectly, using funds (1) borrowed from such Person or any Subsidiary of such Person until and to the extent such borrowing is repaid or (2) contributed, extended, guaranteed or advanced by such Person or any Subsidiary of such Person (including, without limitation, in respect of any employee stock ownership or benefit plan). Unless otherwise specified, Qualified Equity Interests refer to Qualified Equity Interests of Holdings.

“Qualified Equity Offering” means the issuance and sale of Qualified Equity Interests of Holdings (or any direct or indirect parent of Holdings to the extent the net proceeds therefrom are contributed to the common equity capital of Holdings or used to purchase Qualified Equity Interests of Holdings), other than (a) any issuance pursuant to employee benefit plans or otherwise in compensation to officers, directors, trustees or employees or (b) public offerings with respect to Holdings’ Qualified Equity Interests (or options, warrants or rights with respect thereto) registered on Form S-4 or S-8.

“Qualified Receivables Financing” means any Receivables Financing of a Receivables Subsidiary that meets the following conditions:

(1)            the Board of Directors of Holdings has determined in good faith that such Qualified Receivables Financing (including financing terms, covenants, termination events and other provisions) is, in the aggregate, economically fair and reasonable to Holdings and its Restricted Subsidiaries;

(2)            all sales or contributions of accounts receivable and related assets by Holdings or any Restricted Subsidiary to the Receivables Subsidiary are made at fair market value (as determined in good faith by an Officer of Holdings); and

(3)            the financing terms, covenants, termination events and other provisions thereof will be market terms (as determined in good faith by an Officer of Holdings) and may include Standard Securitization Undertakings.

The grant of a security interest in any accounts receivable of Holdings or any Restricted Subsidiary (other than a Receivables Subsidiary) to secure any Indebtedness will not be deemed a Qualified Receivables Financing; provided, however, that a grant of a security interest in such accounts receivable to perfect the transfer of an ownership interest in such accounts receivable to a Receivables Subsidiary shall not be considered a grant to secure any Indebtedness.

“Rating Agencies” means each of Moody’s and S&P, or if Moody’s or S&P or both shall not make a rating on the Notes publicly available (other than as a result of voluntary action or inaction on the part of Holdings), a nationally recognized statistical rating agency or agencies, as the case may be, selected by Holdings (as certified by a resolution of the Board of Directors) which shall be substituted for Moody’s or S&P, as the case may be.

“Real Property” means, collectively, all right, title and interest (including any leasehold estate) in and to any and all parcels of or interests in real property owned in fee or leased, subleased or licensed by the Issuers or any Guarantor, together with, in each case, all easements, hereditaments and appurtenances relating thereto, and all improvements and appurtenant fixtures incidental to the ownership, lease, sublease or license thereof.

“Receivables Facility” means one or more receivables financing facilities, as amended, supplemented, modified, extended, renewed, restated, refunded, replaced or refinanced from time to time, the Indebtedness of which is non-recourse (except for standard representations, warranties, covenants and indemnities made in connection with such facilities) to Holdings and its Restricted Subsidiaries pursuant to which Holdings or any Restricted Subsidiary sells or contributes its accounts receivable to either (1) a Person that is not a Restricted Subsidiary; or (2) a Receivables Subsidiary that in turn sells its accounts receivable to a Person that is not a Restricted Subsidiary or borrows against such accounts receivable.

“Receivables Financing” means any transaction or series of transactions that may be entered into by Holdings or any Restricted Subsidiary pursuant to which Holdings or any Restricted Subsidiaries may sell, convey, contribute or otherwise transfer to:

(1)            a Receivables Subsidiary (in the case of a transfer by Holdings or any Restricted Subsidiary that is not a Receivables Subsidiary); and

(2)            any other Person (in the case of a transfer by a Receivables Subsidiary), or may grant a security interest in, any accounts receivable (whether now existing or arising in the future) of Holdings or any Restricted Subsidiary, and any assets related thereto including all collateral securing such accounts receivable, all contracts and all guarantees or other obligations in respect of such accounts receivable, proceeds of such accounts receivable and other assets which are customarily transferred or in respect of which security interests are customarily granted in connection with asset securitization transactions involving accounts receivable and any Hedging Obligations entered into by Holdings or any such Restricted Subsidiary in connection with such accounts receivable.

“Receivables Repurchase Obligation” means any obligation of a seller to repurchase receivables transferred by such seller in a Qualified Receivables Financing, which obligation arises as a result of a breach of a representation, warranty or covenant or otherwise, including as a result of a receivable or portion thereof becoming subject to any asserted defense, dispute, off-set or counterclaim of any kind as a result of any action taken by, any failure to take action by or any other event relating to the seller.

“Receivables Subsidiary” means a Wholly-Owned Subsidiary of Holdings (or another Person formed solely for the purposes of engaging in a Qualified Receivables Financing with Holdings or any Restricted Subsidiary and to which Holdings or any Restricted Subsidiary transfers accounts receivable and related assets) which engages in no activities other than in connection with the financing of accounts receivable of Holdings and its Restricted Subsidiaries, all proceeds thereof and all rights (contractual or other), collateral and other assets relating thereto, and any business or activities incidental or related to such business, and which is designated by the Board of Directors of Holdings (as provided below) as a Receivables Subsidiary and:

(1)           no portion of the Indebtedness or any other obligations (contingent or otherwise):

(a)            is guaranteed by Holdings or any Restricted Subsidiary (excluding guarantees of obligations (other than the principal of, and interest on, Indebtedness) pursuant to Standard Securitization Undertakings, including servicing performance guarantees);

(b)            is recourse to or obligates Holdings or any Restricted Subsidiary in any way other than pursuant to Standard Securitization Undertakings, including servicing performance guarantees; or

(c)            subjects any property or asset of Holdings or any Restricted Subsidiary, directly or indirectly, contingently or otherwise, to the satisfaction thereof, other than pursuant to Standard Securitization Undertakings;

(2)           with which neither Holdings nor any Restricted Subsidiary has any material contract, agreement, arrangement or understanding other than on terms which Holdings reasonably believes to be no less favorable to Holdings or such Restricted Subsidiary than those that might be obtained at the time from Persons that are not Affiliates of Holdings; and

(3)           to which neither Holdings nor any other Restricted Subsidiary has any obligation to maintain or preserve such entity’s financial condition or cause such entity to achieve certain levels of operating results.

Any such designation by the Board of Directors of Holdings will be evidenced to the Trustee by filing with the Trustee a certified copy of the resolution of the Board of Directors of Holdings giving effect to such designation and an Officer’s Certificate of Holdings certifying that such designation complied with the foregoing conditions.

“refinance” means to refinance, repay, prepay, replace, renew or refund.

“Refinancing Indebtedness” means Indebtedness of Holdings or a Restricted Subsidiary incurred in exchange for, or the proceeds of which are used to redeem, refinance, replace, defease, discharge, refund, restate, substitute, modify, supplement or reissue or otherwise retire for value, in whole or in part, any Indebtedness of Holdings or any Restricted Subsidiary (the “Refinanced Indebtedness”); provided that:

(1)            the principal amount (or accreted value, in the case of Indebtedness issued at a discount) of the Refinancing Indebtedness does not exceed the principal amount of the Refinanced Indebtedness plus the amount of accrued and unpaid interest on the Refinanced Indebtedness, any premium paid to the holders of the Refinanced Indebtedness and reasonable expenses and defeasance costs incurred in connection with the incurrence of the Refinancing Indebtedness;

(2)            the obligor of the Refinancing Indebtedness does not include any Person (other than the Issuers or any Guarantor) that is not an obligor of the Refinanced Indebtedness;

(3)            if the Refinanced Indebtedness was subordinated in right of payment to the Notes or the Guarantees, as the case may be, then such Refinancing Indebtedness, by its terms, is subordinate in right of payment to the Notes or the Guarantees, as the case may be, at least to the same extent as the Refinanced Indebtedness;

(4)            if the Refinancing Indebtedness is secured on the Collateral, the Liens securing such Refinancing Indebtedness have a Lien priority equal or junior to the Liens securing the Refinanced Indebtedness;

(5)            the Refinancing Indebtedness has a Stated Maturity either (a) no earlier than the Refinanced Indebtedness being repaid or amended or (b) no earlier than 91 days after the maturity date of the Notes;

(6)            the portion, if any, of the Refinancing Indebtedness that is scheduled to mature on or prior to the maturity date of the Notes has a Weighted Average Life to Maturity at the time such Refinancing Indebtedness is incurred that is equal to or greater than the Weighted Average Life to Maturity of the portion of the Refinanced Indebtedness being repaid that is scheduled to mature on or prior to the maturity date of the Notes; and

(7)            the proceeds of the Refinancing Indebtedness shall be used substantially concurrently with the incurrence thereof to redeem, refinance, replace, defease, discharge, refund or otherwise retire for value the Refinanced Indebtedness, unless the Refinanced Indebtedness is not then due and is not redeemable or prepayable at the option of the obligor thereof or is redeemable or prepayable only with notice, in which case such proceeds shall be held until the Refinanced Indebtedness becomes due or redeemable or prepayable or such notice period lapses and then shall be used to refinance the Refinanced Indebtedness; provided that in any event the Refinanced Indebtedness shall be redeemed, refinanced, replaced, defeased, discharged, refunded or otherwise retired within 90 days of the incurrence of the Refinancing Indebtedness.

“Replacement Assets” means (1) proceeds to restore, rebuild, retain, construct, improve, replace or otherwise acquire assets used or useful in Holdings’, any Issuer’s or any Restricted Subsidiary’s business or (2) all or substantially all the assets of a Permitted Business or a majority of the Voting Stock of any Person engaged in a Permitted Business that will become on the date of acquisition thereof a Restricted Subsidiary.

“Responsible Financial or Accounting Officer” means any one of the Chief Financial Officer (or other principal financial officer), Vice President of Finance, Treasurer or Chief Accounting Officer (or other principal accounting officer or controller) of Holdings or other Officer of Holdings fulfilling the functions of any such position.

“Responsible Officer” means, when used with respect to the Trustee, any officer within the corporate trust department of the Trustee, including any vice president, assistant vice president, assistant secretary, assistant treasurer, trust officer or any other officer of the Trustee who customarily performs functions similar to those performed by the Persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of such Person’s knowledge of and familiarity with the particular subject and, in each case, who shall have direct responsibility for the administration of this Indenture.

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

“Restricted Payment” means any of the following:

(1)            the declaration or payment of any dividend or any other distribution (whether made in cash, securities or other property) on or in respect of Equity Interests of Holdings or any Restricted Subsidiary or any payment made to the direct or indirect holders (in their capacities as such) of Equity Interests of Holdings or any Restricted Subsidiary, including, without limitation, any payment in connection with any merger or consolidation involving Holdings or any of its Restricted Subsidiaries but excluding (a) dividends or distributions payable solely in Qualified Equity Interests or through accretion or accumulation of such dividends on such Equity Interests and (b) in the case of Restricted Subsidiaries, dividends or distributions payable to Holdings or to a Restricted Subsidiary (and if such Restricted Subsidiary is not a Wholly-Owned Subsidiary, to its other holders of its Equity Interests on a pro rata basis or a basis more favorable to Holdings);

(2)            the purchase, redemption, defeasance or other acquisition or retirement for value of any Equity Interests of Holdings or any direct or indirect parent of Holdings held by Persons other than Holdings or a Restricted Subsidiary (including, without limitation, any payment in connection with any merger or consolidation involving Holdings);

(3)            any Restricted Investment; or

(4)            any principal payment on, purchase, redemption, defeasance, prepayment, decrease or other acquisition or retirement for value prior to any scheduled maturity or prior to any scheduled repayment of principal or sinking fund payment, as the case may be, in respect of Subordinated Indebtedness (other than any such payment made within one year of any such scheduled maturity or scheduled repayment or sinking fund payment and other than any Subordinated Indebtedness owed to and held by Holdings or any Restricted Subsidiary permitted under Section 4.9(b)(6)).

“Restricted Payments Basket” has the meaning given to such term in Section 4.7(a).

“Restricted Subsidiary” means any Subsidiary other than an Unrestricted Subsidiary.

“Sale and Leaseback Transaction” means any arrangements with any Person providing for the leasing by Holdings or any of its Restricted Subsidiaries of real or personal property which has been or is to be sold or transferred by Holdings or such Restricted Subsidiary to such Person or to any other Person to whom funds have been or are to be advanced by such Person in connection therewith.

“S&P” means S&P Global Inc. or any successor to its rating agency business.

“SEC” means the U.S. Securities and Exchange Commission.

“Secured Indebtedness” means all Indebtedness for borrowed money and all obligations in the form of loans, notes, bonds, debentures or other similar instruments that are secured by a Lien.

“Secured Parties” means the Notes Collateral Agent, the Trustee and the Holders.

“Securities Act” means the U.S. Securities Act of 1933, as amended.

“Security Documents” means the Intercreditor Agreements, each joinder or other agreement (including other intercreditor agreements) pursuant to which holders of other Pari Passu Notes Lien Indebtedness become parties thereto, and all security agreements, pledge agreements, Mortgages, deeds of hypothec, collateral assignments, collateral agency agreements, debentures, control agreements or other grants or transfers for security executed and delivered by the Issuers or any Guarantor (including, without limitation, Uniform Commercial Code financing statements or PPSA financing statements or equivalent statements in any other jurisdiction) creating (or purporting to create) a Lien upon Collateral in favor of the Notes Collateral Agent or other agent or representative of Pari Passu Notes Lien Indebtedness or notice of such pledge, grant or assignment is given, in each case, as amended, modified, renewed, restated or replaced, in whole or in part, from time to time, in accordance with its terms and the terms of the Intercreditor Agreements.

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

“Spanish Lien” means a Lien granted on any Collateral located in Spain or the creation, perfection or priority of which is governed by the laws of Spain.

“Spanish Subsidiary” means Venator P&A Spain, S.L.U., an entity organized under the laws of Spain.

“Specified Cash Management Agreements” means any agreement providing for treasury, depositary, pooling, netting, overdraft, stored value card, purchasing card (including so call “procurement card” or “P card”), debit card, credit card or cash management services, supply chain finance services (including, without limitation, trade payable services and supplier accounts receivable purchases), including in connection with any automated clearing house transfers of funds or any similar transactions between Holdings or any Restricted Subsidiary and any Person who is or was a lender at the time such agreement was entered into.

“Specified Foreign Jurisdiction” means Canada, France, Germany, Luxembourg, Spain, the United Kingdom and Finland.

“Standard Securitization Undertakings” means representations, warranties, covenants, indemnities and guarantees of performance entered into by Holdings or any Subsidiary of Holdings that an Officer of Holdings has determined in good faith to be customary in a Receivables Financing, including those relating to the servicing of the assets of a Receivables Subsidiary, it being understood that any Receivables Repurchase Obligation will be deemed to be a Standard Securitization Undertaking.

“Stated Maturity” means, with respect to any Indebtedness, the date specified in the agreement governing or certificate relating to such Indebtedness as the fixed date on which the final payment of principal of such Indebtedness is due and payable, including pursuant to any mandatory redemption provision, but shall not include any contingent obligations to repay, redeem or repurchase any such principal prior to the date originally scheduled for the payment thereof.

“Subordinated Indebtedness” means Indebtedness of the Issuers or any Guarantor that is expressly subordinated in right of payment to the Notes or the Guarantees, respectively.

“Subsidiary” means, with respect to any Person:

(1)            any corporation, limited liability company, association, trust or other business entity of which more than 50.0% of the total voting power of the Equity Interests entitled (without regard to the occurrence of any contingency) to vote in the election of the Board of Directors thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person (or a combination thereof); and

(2)            any partnership (a) the sole general partner or the managing general partner of which is such Person or a Subsidiary of such Person or (b) the only general partners of which are such Person or of one or more Subsidiaries of such Person (or any combination thereof).

Unless otherwise specified, “Subsidiary” refers to a Subsidiary of Holdings (including the Issuers).

“Subsidiary Guarantee” means a Guarantee of the Obligations of the Issuers under the Notes issued by a Subsidiary of Holdings.

“Subsidiary Guarantor” means a Restricted Subsidiary of Holdings (other than the Issuers) that has issued a Subsidiary Guarantee of payment of the Notes.

“Term Loan Collateral Agent” means JPMorgan Chase Bank, N.A., in its capacity as the collateral agent under the Term Loan Credit Facility, or any successor representative acting in such capacity.

“Term Loan Credit Facility” means that certain Term Loan Credit Agreement, dated as of August 8, 2017, by and among Holdings, the Issuers, certain Subsidiaries party thereto, J.P. Morgan Chase Bank, N.A., as administrative agent and collateral agent, and the several lenders and other agents party thereto, including any notes, guarantees, collateral and security documents, instruments and agreements executed in connection therewith (including Hedging Obligations related to the Indebtedness incurred thereunder), and in each case as such agreement or facility may be amended (including any amendment or restatement thereof), supplemented or otherwise modified from time to time, including any agreement or indenture exchanging, extending the maturity of, refinancing, renewing, replacing, substituting or otherwise restructuring, whether in the bank or debt capital markets (or combination thereof) (including increasing the amount of available borrowings thereunder, changing the maturity or adding or removing Subsidiaries as borrowers or guarantors thereunder and whether or not with the same agents, lenders, investors or holders) all or any portion of the Indebtedness under such agreement or facility or any successor or replacement agreement or facility.

“Term Loan Obligations” means all Indebtedness, liabilities and obligations (of every kind or nature) incurred or arising under or relating to the Term Loan Credit Facility that is secured by a Permitted Lien described under clause (17) of the definition thereof, and all other obligations of the Issuers or any Guarantor in respect thereof.

“Total Net Leverage Ratio” means, at any time of determination, the ratio of (i) the outstanding principal amount of Indebtedness (net of Unrestricted Cash) to (ii) the Consolidated Cash Flow of Holdings during the most recent Four-Quarter Period ending on or prior to the date of determination; provided that such Total Net Leverage Ratio shall be determined on a pro forma basis in a manner consistent with the definition of Consolidated Interest Coverage Ratio.

“Transactions” means the offering of the Notes, the use of proceeds from the Notes, the payment of fees and expenses in connection with the foregoing and the other transactions described in the Offering Memorandum.

“Treasury Rate” means, as of any redemption date, the yield to maturity at the time of computation of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) which has become publicly available at least two Business Days prior to the redemption date (or, if such Statistical Release is no longer published, any publicly available source or similar market data)) most nearly equal to the period from the redemption date to July 1, 2022; provided, however, that if the period from the redemption date to July 1, 2022 is not equal to the constant maturity of a United States Treasury security for which a weekly average yield is given, the Treasury Rate shall be obtained by linear interpolation (calculated to the nearest one-twelfth of a year) from the weekly average yields of United States Treasury securities for which such yields are given, except that if the period from the redemption date to July 1, 2022 is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year shall be used.

“Trustee” has the meaning set forth in the preamble of this Indenture and any successor thereto.

“Trust Funds” means, to the extent segregated from other assets of the Issuers and the Guarantors in a segregated account that contains amounts comprised solely and exclusively of such Trust Funds, cash, Cash Equivalents or other assets comprised solely of:

(1)            funds used for payroll and payroll taxes and other employee benefit payments to or for the benefit of the Issuers’ or the Guarantors’ employees;

(2)            all taxes required to be collected, remitted or withheld (including federal and state withholding taxes (including the employer’s share thereof));

(3)            (a) proceeds from the issuance of Indebtedness, (b) proceeds from the sale or disposition of assets (other than ABL Priority Collateral) and (c) proceeds of insurance and condemnation awards (and payments in lieu thereof) relating to any assets (other than ABL Priority Collateral), in each of clauses (a), (b) and (c), to the extent such cash or permitted investment is required to be deposited in an account pursuant to the documentation governing any Indebtedness having a first priority lien on any such assets; and

(4)            any other funds which Holdings or any Restricted Subsidiaries hold in trust or as an escrow or fiduciary for another person which is not a Restricted Subsidiary of Holdings.

“United States” or “U.S.” means the United States of America.

“Uniform Commercial Code” means the Uniform Commercial Code as in effect from time to time in any applicable jurisdiction.

“Unrestricted Cash” means, as of any date, all cash and Cash Equivalents of Holdings and its Restricted Subsidiaries as of such date that would not appear as “restricted” on Holdings’ financial statements, determined on a consolidated basis in accordance with GAAP, determined based upon the most recent quarter-end financial statements available internally as of the date of determination, and calculated on a pro forma basis.

“Unrestricted Subsidiary” means (1) any Subsidiary that at the time of determination shall be designated an Unrestricted Subsidiary by the Board of Directors of Holdings in accordance with Section 4.16 and (2) any Subsidiary of an Unrestricted Subsidiary. Notwithstanding the preceding, if at any time, any Unrestricted Subsidiary would fail to meet the requirements as an Unrestricted Subsidiary described under Section 4.16, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture.

“U.S. Excluded Assets” means:

(1)            all Excluded Equity Interests;

(2)            all leasehold Real Property interests;

(3)            (i) all fee simple Real Property that is not Owned Material Real Property, (ii) all fee simple Real Property that is subject to a Sale and Lease-back Transaction permitted under the Term Loan Credit Facility and (iii) all fee simple Real Property located outside of the United States;

(4)            security interests to the extent the same would result in materially adverse tax consequences (including any adverse tax consequences due to the application of Section 956 of the Code) or materially adverse regulatory consequences, in each case, as reasonably determined by an Officer of Holdings in good faith and identified in writing to the Notes Collateral Agent;

(5)            any governmental licenses or state or local franchises, charters and authorizations that are not permitted to be pledged under applicable law, other than to the extent that any such prohibition would be rendered ineffective pursuant to Section 9-407, 9-408 or 9-409 of the Uniform Commercial Code or any other applicable law (including Title 11 of the United States Code) or principles of equity;

(6)            any “intent-to-use” applications for trademark or service mark registrations filed pursuant to Section 1(b) of the Lanham Act, 15 U.S.C. § 1051, unless and until an Amendment to Allege Use or a Statement of Use under Sections 1(c) and 1(d) of the Lanham Act has been filed, to the extent that, and solely during the period for which, any assignment of an “intent-to-use” application prior to such filing would violate applicable federal law or impair the validity or enforceability of any registration that issues from such “intent-to-use” application under applicable federal law;

(7)            any Trust Funds;

(8)            any assets (including stock) owned directly or indirectly by a CFC or a FSHCO;

(9)            any aircraft and any trucks, trailers, tractors, service vehicles, automobiles, rolling stock, registered mobile equipment and any other assets subject to certificates of title or ownership of the Holdings or any Subsidiary;

(10)          any lease, license, contract or agreement to which the Issuers or any Guarantor are parties or any of their right, title or interest thereunder or in any assets subject thereto to the extent, but only to the extent, and only for a period in which, such a grant would, under the terms of such lease, license, contract or agreement, result in a breach of the terms of, or constitute a default under, such lease, license, contract or agreement, or result in the abandonment, invalidation or unenforceability thereof or create a right of termination in favor of or require the consent of any other party thereto (other than Holdings, the Issuers or any of their respective Subsidiaries), to the extent not entered into for the primary purpose of qualifying for this exception and other than to the extent that any such term would be rendered ineffective pursuant to Section 9-406, 9-407, 9-408 or 9-409 of the Uniform Commercial Code or any other applicable law (including Title 11 of the Code) or principles of equity; provided, however, that the Collateral shall include (and such security interest shall attach and the definition of “U.S. Excluded Assets” shall not then include) immediately at such time as the contractual or legal provisions referred to above shall no longer be applicable and to the extent severable, and shall attach immediately to, any portion of such lease, license, contract or agreement or related assets not subject to the provisions specified in this clause (10); provided, further, that the exclusions referred to in this clause shall not include any proceeds of or monies due or to become due (including any Accounts) (as defined in the New York Uniform Commercial Code) from such lease, license, contract or agreement;

(11)          assets to the extent the granting of a security interest therein would be prohibited or restricted by applicable law, rule or regulation (including any requirement to obtain the consent, approval, license or authorization of any Governmental Authority which has not been obtained) or enforceable anti-assignment provisions of contracts, other than to the extent that such prohibition or restriction would be overridden by the applicable Uniform Commercial Code; provided, however, that the Collateral shall include (and such security interest shall attach and the definition of “U.S. Excluded Assets” shall not then include) immediately at such time as the contractual or legal provisions referred to above shall no longer be applicable and to the extent severable, and shall attach immediately to, any portion of such assets not subject to the provisions specified in this clause (11); provided, further, that the exclusions referred to in this clause (11) shall not include any proceeds of or monies due or to become due (including any Accounts) from such assets;

(12)          any assets to the extent the cost, burden, difficulty or consequence of obtaining or perfecting a security interest therein outweighs the benefit of the security afforded thereby, as reasonably agreed by Holdings and the Term Loan Collateral Agent pursuant to the Term Loan Credit Facility; or

(13)          (a) any assets and proceeds thereof subject to a Lien permitted under this Indenture to the extent that the documents providing for the Indebtedness secured by such Liens do not permit such assets and proceeds thereof to be pledged to the Notes Collateral Agent; provided, further, that the exclusions referred to in this clause (a) shall not include any proceeds of such document; or (b) any assets subject to a Lien permitted by this Indenture so long as the documents providing for such Lien do not permit such assets to be pledged to the Notes Collateral Agent.

“U.S. Government Obligations” means direct non-callable obligations of, or guaranteed by, the United States for the payment of which guarantee or obligations the full faith and credit of the United States is pledged.

“Vice President,” when used with respect to the Issuers, means any vice president, whether or not designated by a number or a word or words added before or after the title “vice president.”

“Voting Stock” with respect to any Person, means securities of any class of Equity Interests of such Person entitling the holders thereof (whether at all times or only so long as no senior class of stock or other relevant equity interest has voting power by reason of any contingency) to vote in the election of members of the Board of Directors of such Person.

“Weighted Average Life to Maturity” when applied to any Indebtedness at any date, means the number of years obtained by dividing (1) the sum of the products obtained by multiplying (a) the amount of each then remaining installment, sinking fund, serial maturity or other required payment of principal, including payment at Stated Maturity, in respect thereof by (b) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment by (2) the then outstanding principal amount of such Indebtedness.

“Wholly-Owned Subsidiary” means a Restricted Subsidiary, all of the Equity Interests of which (other than directors’ qualifying shares) are owned by Holdings or another Wholly-Owned Subsidiary.

(a)            a term defined in Sections 1.1 or 1.2 has the meaning assigned to it therein;

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

(c)            “or” is not exclusive;

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

(e)            provisions apply to successive events and transactions;

(f)            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;

(g)            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;

(h)            “including” or “include” means including or include without limitation;

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

(j)            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;

(k)            unsecured Indebtedness shall not be deemed to be subordinated or junior to secured Indebtedness merely by virtue of its nature as unsecured Indebtedness and senior Indebtedness shall not be deemed to be subordinated or junior to any other senior Indebtedness merely because it has a junior priority with respect to the same collateral; and

(l)            certain terms used primarily in Appendix A are defined in that Appendix.

(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 Issuers and the 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 7.1) conclusive in favor of the Trustee, the Notes Collateral Agent, the Issuers and the Guarantors, if made in the manner provided in this Section 1.4.

(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 a signer acting in a capacity other than such signer’s individual capacity, such certificate or affidavit shall also constitute proof of such signer’s authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner that the Trustee deems sufficient.

(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 Notes Collateral Agent, the Issuers or the Guarantors in reliance thereon, whether or not notation of such action is made upon such Note.

(e)            If the Issuers shall solicit from the Holders any request, demand, authorization, direction, notice, consent, waiver or other act, the Issuers may, at their option, by or pursuant to a board resolution of the Issuers’ Board of Directors, fix in advance a record date for the determination of Holders entitled to give such request, demand, authorization, direction, notice, consent, waiver or other act, but the Issuers shall have no obligation to do so. Any such record date shall be the record date specified in or pursuant to such board resolution, which shall be a date not more than 30 days prior to the first solicitation of Holders generally in connection therewith and no later than the date such solicitation is completed. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other act may be given before or after such record date, but only the Holders of record at the close of business on such record date shall be deemed to be Holders for the purposes of determining whether Holders of the requisite proportion of outstanding Notes have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other act, and for that purpose the outstanding Notes shall be computed as of such record date; provided that no request, demand, authorization, direction, notice, consent, waiver or other act by the Holders on such record date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than six months after the record date.

(f)            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.

(g)            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.

(h)            With respect to any Global Note, the Issuers 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 expiration date, if any, designated by the Issuers.

(a)            In this Indenture, where it relates to a person incorporated or formed or having its center of main interests in Spain, a reference to:

(i)            “administration,” “insolvency” or “insolvency proceeding” and any step or proceeding relating to it has the meaning attributed to them under the Spanish Insolvency Law, including a declaración de concurso con independecia de su carácter necesario o voluntario (as well as any solicitud de inicio del procedimiento de concurso voluntario, the request of declaration of insolvency by a third party (solicitud de concurso por acreedores) (including without limitation, any petition filed under a competent court pursuant to article 5 bis or article 231 of the Spanish Insolvency Law and its solictud de inicio de procedimiento de concurso, auto de declaración de concurso, convenio judicial o extrajudicial con acreedores and transacción extrajudicial). A person being unable to pay its debts includes that person being in a state of insolvencia or in concurso according to Spanish Insolvency Law;

(ii)            “winding-up,” “liquidation” or “dissolution” includes, without limitation, disolución, liquidación, or any other similar proceedings as regulated under the laws of Spain from time to time;

(iii)            a “liquidator,” “receiver,” “administrative receiver,” “administrator” or “compulsory manager” includes, without limitation, mediador concursal, administrador del concurso, administración concursal or a liquidador or any other person or entity performing the same or a similar function;

(iv)            a “composition,” “moratorium” or “arrangement” with any creditor includes, without limitation, a convenio de acreedores or propuesta anticipada de convenio or acuerdo de refinanciación or acuerdo extrajudicial de pagos or refinancing agreement to be judicially sanctioned for the purposes of the Spanish Insolvency Law or any agreement under article 71bis or Additional Provision Four (Disposición Adicional Cuarta) of the Spanish Insolvency Law;

(v)            a “security” includes any mortgage (hipoteca), pledge (prenda) (with or without transfer of possession), financial collateral agreement (garantía financiera pignoraticia) and, in general, any in rem security right governed by the laws of Spain; and

(vi)            a “guarantee” includes any accessory personal guarantee (fianza), performance bond (aval), joint and several guarantee (garantía solidaria) and first demand guarantee (garantía a primer requerimiento).

(b)            In this Indenture, the following terms shall have the following definitions:

“Spain” shall mean the Kingdom of Spain.

“Spanish Civil Code” shall mean the Spanish Código Civil, as amended from time to time.

“Spanish Civil Procedural Law” shall mean Law 1/2000 of 7 January (Ley de Enjuiciamiento Civil), as amended from time to time.

“Spanish Companies Law” shall mean the Royal Legislative Decree 1/2010, of 2 July, whereby the companies act is approved (Real Decreto Legislativo 1/2010, de 2 de julio, por el que se aprueba el texto refundido de la Ley de Sociedades de Capital), as amended from time to time.

“Spanish Guarantors” shall mean, collectively, each Guarantor that is incorporated under the laws of Spain (including the Spanish Subsidiary).

“Spanish Insolvency Law” shall mean the Law 22/2003 of 9 July 2003, on insolvency (Ley 22/2003, de 9 de julio, Concursal), as amended from time to time or, if applicable, as superseded by virtue of the Spanish Royal Legislative Decree 1/2020 of 5 May 2020 approving the Spanish Recast Insolvency Law, as amended from time to time (the “Spanish Recast Insolvency Law”). If applicable, references in this Indenture to specific sections of the Spanish Insolvency Law shall be understood to be done to the equivalent provisions of the Spanish Recast Insolvency Law.

“Spanish Public Document” shall mean a Spanish law notarial deed (documento público), being either an escritura pública or a póliza o efecto intervenido por notario español.

ARTICLE II
THE NOTES

Section 2.1.          Form and Dating, Terms.

(a)            Provisions relating to the Initial Notes, Additional 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 (with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture). The Notes and the Trustee’s certificate of authentication shall each be substantially in the form of Exhibit A attached hereto (with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture), 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 Issuers or any Guarantor is subject, if any, or usage (provided that any such notation, legend or endorsement is in a form acceptable to the Issuers). Each Note shall be dated the date of its authentication. The Notes shall be issued only in fully registered form without coupons and only in minimum 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.

(c)            The terms and provisions contained in the Notes shall constitute, and are hereby expressly made, a part of this Indenture, and the Issuers, the Guarantors and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby. However, to the extent any provision of any Note conflicts with the express provisions of this Indenture, the provisions of this Indenture shall govern and be controlling. For the avoidance of doubt, the application of articles 470-1 to 470-19 (inclusive and to the fullest extent permitted by law) of the Luxembourg Act of 10 August 1915 on commercial companies, as amended, shall be expressly excluded.

(d)            The Notes shall be subject to repurchase by the Issuers pursuant to a Collateral Disposition Offer or a Net Proceeds Offer as provided in Section 4.10 or a Change of Control Offer as provided in Section 4.13, and otherwise as not prohibited by this Indenture. The Notes shall not be redeemable, other than as provided in Article III.

(e)            An unlimited aggregate principal amount of Additional Notes ranking pari passu with the Initial Notes may be created and issued from time to time by the Issuers without notice to or consent of the Holders and shall be consolidated with and form a single class with the Initial 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 the Issuers’ ability to issue Additional Notes shall be subject to the Issuers’ compliance with Section 4.9 and Section 4.12; provided, further, that if any Additional Notes are not fungible with the Initial Notes for U.S. federal income tax purposes, such Additional Notes shall be issued as a separate series under this Indenture and shall have separate CUSIP and ISIN numbers from the Initial Notes. The Initial Notes and any Additional Notes, to the extent issued as part of the same series, shall be treated as a single class for all purposes under this Indenture, including waivers, amendments, redemptions and offers to purchase. Any Additional Notes shall be issued either pursuant to an Officer’s Certificate of the Issuers, pursuant to a resolution by the Board of Directors of the Issuers or pursuant to an indenture supplemental to this Indenture.

Section 2.2.         Execution and Authentication.

(a)            At least one Officer of the Issuers shall execute the Notes on behalf of the Issuers by manual, electronic or facsimile signature. If an Officer whose signature is on a Note no longer holds that or any 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 request or order of the Issuers signed by an Officer of the Issuers (an “Authentication Order”), 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, authenticate and deliver any Additional Notes in an aggregate principal amount specified in such Authentication Order for such Additional Notes issued hereunder.

(d)            The Trustee may appoint an Authenticating Agent acceptable to the Issuers to authenticate Notes in accordance Section 7.10. Unless limited by the terms of such appointment, an Authenticating Agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An Authenticating Agent has the same rights as an Agent to deal with Holders, the Issuers or an Affiliate of the Issuers.

(e)            The Trustee shall authenticate and make available for delivery upon receipt of an Authentication Order from the Issuers (a) Initial Notes for original issue on the Issue Date in an aggregate principal amount of $225,000,000, (b) subject to the terms of this Indenture, Additional Notes, and (c) any Unrestricted Global Notes (as defined in Appendix A) 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 Notes are to be authenticated and whether the Notes are to be Initial Notes, Additional Notes or Unrestricted Global Notes. Upon receipt of a written order of the Issuers signed by one Officer of the Issuers, the Trustee shall authenticate Notes in substitution for Notes originally issued to reflect any name change of the Issuers.

Section 2.3.         Registrar; Paying Agent.

(a)            The Issuers 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 Issuers 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 Issuers may change any Paying Agent or Registrar without prior notice to any Holder. The Issuers shall notify the Trustee in writing of the name and address of any Agent not a party to this Indenture. If the Issuers fail to appoint or maintain another entity as Registrar or Paying Agent, the Trustee shall act as such. Holdings, the Issuers and/or any Restricted Subsidiary may act as Paying Agent or Registrar. As the application of articles 470-1 to 470-19 (inclusive and to the fullest extent permitted by law) of the Luxembourg Act of 10 August 1915 on commercial companies, as amended, will be expressly excluded pursuant to this Indenture, Venator Finance will not maintain its own register of the Notes issued by it at its registered office (the “Issuer Register”). In the absence of any Issuer Register, it is generally accepted that any register maintained by the Registrar would constitute the best evidence of ownership of the Notes, in the absence of proof to the contrary. However, there may be a delay in updating the register and discrepancies in recordings cannot be excluded. Upon written request from Venator Finance, the Registrar will provide Venator Finance with a copy of the register for corporate law purposes.

(b)            The Issuers initially appoint The Depository Trust Company to act as Depositary with respect to the Global Notes. The Issuers initially appoint the Trustee to act as Paying Agent and Registrar for the Notes and to act as Custodian with respect to the Global Notes.

Section 2.4.          Paying Agent to Hold Money in Trust. Unless otherwise agreed with the Paying Agent, the Issuers 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 Issuers shall promptly notify the Trustee of their action or failure so to act. The Issuers 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 Issuers in making any such payment. While any such default continues, the Trustee may require a Paying Agent to pay all money held by it in trust for the benefit of the Holders to the Trustee. The Issuers 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 Holdings, the Issuers or a Subsidiary acts as Paying Agent, they shall segregate and hold in a separate trust fund for the benefit of the Holders all money held by them as Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the Issuers specified in Section 6.1(9), the Trustee shall serve as Paying Agent for the Notes.

Section 2.5.         Holder Lists. The Trustee, for so long as it is acting as 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. If the Trustee is not the Registrar, the Issuers 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. Every Holder, by receiving and holding the same, agrees with the Issuers, the Guarantors, the Trustee and the Notes Collateral Agent that none of the Issuers, the Guarantors, the Trustee or the Notes Collateral Agent or any agent of any of them shall be held accountable by reason of the disclosure of any information as to the names and addresses of the Holders, regardless of the source from which such information was derived.

Section 2.6.         Transfers 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 Issuers shall execute and the Trustee shall authenticate Global Notes and Definitive Notes upon receipt of an Authentication Order in accordance with Section 2.2 or at the Registrar’s request.

(c)            No service charge shall be imposed in connection with any registration of transfer or exchange of the Notes (other than pursuant to Section 2.7), but the Issuers may require payment of a sum sufficient to cover any documentary, stamp, similar issue or transfer tax or similar governmental charge payable in connection therewith (other than any such documentary, stamp, similar issue or transfer tax or similar governmental charge payable upon exchange or transfer pursuant to Sections 2.10, 3.6, 4.10, 4.13 and 9.4).

(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 Issuers, 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 Issuers 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 in accordance with Section 3.2 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, a Collateral Disposition Offer or a Net Proceeds 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 Issuers 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 Issuers 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 Issuers designated pursuant to Section 4.2, the Issuers 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 Issuers 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 pursuant to this Section 2.6 to effect a registration of transfer or exchange may be submitted by mail or by facsimile or electronic transmission.

(j)            Every Note presented or surrendered for registration of transfer or for exchange shall (if so required by the Issuers or the Registrar) be duly endorsed, or be accompanied by a written instrument of transfer, in form satisfactory to the Issuers and the Registrar, duly executed by the Holder thereof or his or her attorney duly authorized in writing.

Section 2.7.         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 Issuers 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 Issuers, an indemnity bond must be provided by the Holder that is sufficient in the judgment of the Trustee and the Issuers to protect the Issuers, the Trustee, any Agent and any authenticating agent from any loss that any of them may suffer if a Note is replaced. The Issuers may charge the Holder for the expenses of the Issuers and the Trustee in replacing a Note. Every replacement Note is a contractual obligation of the Issuers 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 2.7, in case any mutilated, lost, destroyed or wrongfully taken Note has become or is about to become due and payable, the Issuers in their discretion may, instead of issuing a new Note, pay such Note.

Section 2.8.         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 2.8 as not outstanding. Except as set forth in Section 2.9, a Note does not cease to be outstanding because Holdings, the Issuers or an Affiliate of Holdings or the Issuers hold the Note; provided that Notes held by Holdings, the Issuers or a Subsidiary of Holdings will not be deemed to be outstanding to the extent specified in Section 3.7(c)(1).

(b)            If a Note is replaced pursuant to Section 2.7, 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 New York Uniform Commercial Code.

(c)            If the principal amount of any Note is considered paid under Section 4.1, 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 Holdings, the Issuers, 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 2.9.         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 Holdings, the Issuers, or by any Affiliate of Holdings or the Issuers, 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 has written notice as being 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 Holdings, the Issuers or any obligor upon the Notes or any Affiliate of Holdings, the Issuers or of such other obligor. Notwithstanding the foregoing, Notes that are to be acquired by Holdings, the Issuers or an Affiliate of Holdings or the Issuers pursuant to an exchange offer, tender offer or other agreement shall not be deemed to be owned by such entity until legal title to such Notes passes to such entity. To the extent Holdings or the Issuers acquire Notes, Holdings or the Issuers may in their discretion, but is not required to, submit such Notes to the Trustee for cancellation.

Section 2.10.       Temporary Notes. Until Definitive Notes are ready for delivery, the Issuers 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 Issuers consider appropriate for temporary Notes. Without unreasonable delay, the Issuers 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. All Notes surrendered for payment, redemption, registration of transfer or exchange or for credit against any current or future sinking fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee. All Notes so delivered to the Trustee shall be promptly cancelled by it. The Issuers may at any time deliver to the Trustee for cancellation any Notes previously authenticated and delivered hereunder which the Issuers may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for cancellation any Notes previously authenticated hereunder which the Issuers have not issued and sold, and all Notes so delivered shall be promptly cancelled by the Trustee. If the Issuers shall acquire any of the Notes, however, such acquisition shall not operate as a redemption, cancellation or satisfaction of the indebtedness represented by such Notes unless and until the same are surrendered to the Trustee for cancellation. If Holdings, the Issuers or any of their Restricted Subsidiaries acquires any of the Notes, Holdings, the Issuers and their Restricted Subsidiaries may, but are not required to, submit such Notes to the Trustee for cancellation. No Notes shall be authenticated in lieu of or in exchange for any Notes cancelled as provided in this Section 2.11, except as expressly permitted by this Indenture. All cancelled Notes held by the Trustee shall be disposed of by the Trustee in accordance with its customary procedures. The Issuers may not issue new Notes or replace Notes that they have paid or that have been delivered to Trustee for cancellation. The Trustee shall, at the Issuers’ written request, provide certification of the disposal of cancelled Notes.

Section 2.12.       Interest and Defaulted Interest.

(a)            Interest, if any, on the Notes which is payable, and is punctually paid or duly provided for, on any interest payment date shall be paid to the Person in whose name such Note is registered at the close of business on the regular record date for such interest at the office or agency of the Issuers maintained for such purpose pursuant to Section 4.2; provided, however, that each installment of interest, if any, on the Notes may, at the Issuers’ option, be paid by (i) mailing a check for such interest, payable to or upon the written order of the Person entitled thereto pursuant to Section 2.14 or to the address of such Person as it appears on the Note Register or (ii) wire transfer to an account located in the United States maintained by the payee; provided that payment by wire transfer of immediately available funds shall be required with respect to interest payable on all Global Notes and all other Notes the Holders of which shall have provided wire transfer instructions to the Issuers 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.

(b)            If the Issuers default in a payment of interest on the Notes, they 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 4.1. The Issuers 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 the Issuers 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 Issuers shall fix or cause to be fixed each such special record date and payment date; provided that no such special record date shall be less than 10 days prior to the related payment date for such defaulted interest. The Issuers shall promptly notify the Trustee of such special record date. At least 15 days before the special record date, the Issuers (or, upon the request of the Issuers, the Trustee in the name and at the expense of the Issuers) 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.

(c)            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 Issuers 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 Issuers shall promptly notify the Trustee in writing of any change in the CUSIP or ISIN numbers.

Section 2.14.       Persons Deemed Owners

Prior to due presentment of a Note for registration of transfer, the Issuers, the Trustee and any agent of the Issuers or the Trustee may treat the Person in whose name such Note is registered as the owner of such Note for the purpose of receiving payment of principal of (and premium, if any) and (subject to Section 2.12) interest, if any, on such Note and for all other purposes whatsoever, whether or not such Note be overdue, and none of the Issuers, the Trustee or any agent of the Issuers or the Trustee shall be affected by notice to the contrary.

None of the Issuers, the Trustee, any Paying Agent or the Registrar will have any responsibility or liability for any aspect of (i) the records relating to or payments made on account of any participants in the Depositary or any beneficial ownership interests of a Global Note, (ii) maintaining, supervising or reviewing any records maintained by any Depositary or participant therein or any other Person relating to such beneficial ownership interests, (iii) any consent given or other action taken by the Depositary or other Holder of a Note, as the registered holder thereof or (iv) or any act or omission of the Depositary.

Notwithstanding the foregoing, with respect to any Global Note, nothing herein shall prevent the Issuers, the Trustee, or any agent of the Issuers or the Trustee, from giving effect to any written certification, proxy or other authorization furnished by any Depositary, as a Holder, with respect to such Global Note or impair, as between such Depositary and owners of beneficial interests in such Global Note, the operation of customary practices governing the exercise of the rights of such Depositary (or its nominee) as Holder of such Global Note.

Section 2.15.       Additional Amounts.

(a)            All payments required to be made by the Issuers under or with respect to the Notes or by any Guarantor under or with respect to a Guarantee (each of the Issuers or such Guarantor and, in each case, any successor thereof, making such payment, the “Payor”), will be made free and clear of, and without withholding or deduction for or on account of, any taxes (which term, for purposes of this Section 2.15, also includes other governmental charges or, in each case, any related penalties and interest) imposed or levied by or on behalf of any jurisdiction in which any Payor is incorporated, organized or otherwise resident for tax purposes, or engaged in business for tax purposes, or any jurisdiction from or through which payment is made by or on behalf of such Payor, or in each case any political subdivision or taxing authority or agency thereof or therein (each a “Relevant Taxing Jurisdiction”), unless such Payor is required to withhold or deduct such taxes by law or regulation.

(b)            If a Payor is so required to withhold or deduct any amount for or on account of taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or a Guarantee, as applicable, such Payor will be required to pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by any Holder (including Additional Amounts) after such withholding or deduction will not be less than the amount the Holder or beneficial owner would have received if such taxes had not been withheld or deducted; provided, however, that the foregoing obligation to pay Additional Amounts does not apply to:

(1)            any taxes that would not have been (or would not be required to be) so imposed, withheld, deducted or levied but for the existence of any present or former connection between the relevant Holder or beneficial owner (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, the relevant Holder or beneficial owner, if the relevant Holder or beneficial owner is an estate, nominee, trust, partnership, company or corporation) and the Relevant Taxing Jurisdiction, including, without limitation, such Holder or beneficial owner being or having been a citizen, domiciliary, national or resident thereof, or being or having been present or engaged in a trade or business therein or having or having had a permanent establishment therein (other than any connection arising solely from the acquisition or holding of any Note, the receipt of any payments in respect of such Note or Guarantee or the exercise or enforcement of rights under such Note or Guarantee);

(2)            any estate, inheritance, gift, sales, transfer, personal property or similar tax or assessment;

(3)            any taxes which are payable other than by withholding or deduction from payments made under or with respect to the Notes or any Guarantee;

(4)            any taxes that would not have been (or would not be required to be) imposed, withheld, deducted or levied if such Holder or the beneficial owner of any Note or interest therein complied with all reasonable written requests by the Payor (made to the Holder at a time that would enable the Holder or beneficial owner acting reasonably to comply with such request) to provide timely and accurate information or documentation concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner, if such compliance is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of withholding or deduction of, all or part of such taxes;

(5)            any taxes imposed or withheld on or with respect to a payment which could have been made without deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the date on which such payment or such Note became due and payable or the date on which payment thereof is duly provided for, whichever is later (except to the extent that the Holder or beneficial owner would have been entitled to Additional Amounts had the Note been presented on any day during the 30-day period);

(6)            any taxes imposed on or with respect to any payment made under or with respect to such Note or Guarantee to any Holder who is a fiduciary or partnership or any Person other than the sole beneficial owner of such payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such a partnership or the beneficial owner of such payment would not have been entitled to the Additional Amounts had such beneficiary, settlor, member or beneficial owner been the Holder of such Note;

(7)            any taxes payable under Sections 1471-1474 of the Code, as of the Issue Date (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any regulations or official interpretations thereof, any intergovernmental agreement entered into in connection therewith or any law or regulation adopted pursuant to any such intergovernmental agreement or any agreements entered into pursuant to Section 1471(b)(1) of the Code;

(8)            any taxes imposed by the United States or any political subdivision thereof; or

(9)            any taxes imposed or levied by reason of any combination of clauses (1) through (8) above.

(c)            The Issuers and the Guarantors (as the case may be) will pay any present or future stamp, issue, registration, excise, property, court or documentary taxes, or similar taxes, charges or levies (referred to in this Section 2.15 as “stamp taxes”) and interest, penalties and other reasonable expenses related thereto that arise in or are levied by any Relevant Taxing Jurisdiction on the execution, issuance, delivery, enforcement or registration of the Notes, this Indenture, the Guarantees or any other document or instrument in relation thereto (other than on a transfer or assignment of the Notes after the Issue Date) except for stamp taxes due as a result of registration or other action by the Holder of the Notes where such registration or action is not necessary to maintain, preserve, establish, enforce, perfect or protect the rights of the Holder of Notes.

(d)            The Payor will make or cause to be made any withholding or deduction required in respect of taxes, and remit the full amount deducted or withheld to the Relevant Taxing Jurisdiction, in accordance with applicable law. Upon request, the Payor will provide, within a reasonable time after the date the payment of any such taxes so deducted or withheld is made, the Trustee with official receipts or other documentation evidencing the payment of the taxes so deducted or withheld.

(e)            If any Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes or the Guarantees, the Payor will deliver to the Paying Agent with a copy to the Trustee on a date that is at least 30 days prior to the date of that payment (unless the obligation to pay Additional Amounts arises after the 45th day prior to that payment date, in which case the Payor shall notify the Paying Agent and the Trustee promptly thereafter) a certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable and such other information reasonably necessary to enable the Paying Agent to pay Additional Amounts to Holders on the relevant payment date. The Payor shall also deliver a form of Additional Amounts notice that can be delivered to the registered Holders.

(f)            Whenever in this Indenture there is mentioned, in any context:

(1)            the payment of principal;

(2)            the payment of interest; or

(3)            any other amount payable on or with respect to any of the Notes,

such reference will be deemed to include payment of Additional Amounts as described under this Section 2.15 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.

(g)            The obligations described under this Section 2.15 will survive any termination, defeasance or discharge of this Indenture or any Guarantee and will apply mutatis mutandis to any jurisdiction in which any successor Person to the Payor is incorporated, organized or otherwise resident for tax purposes, or engaged in business for tax purposes, or any jurisdiction from or through which payment is made by or on behalf of such successor Person, or in each case any political subdivision or taxing authority or agency thereof or therein.

ARTICLE III
REDEMPTION AND PREPAYMENT

Section 3.1.         Notices to Trustee. If the Issuers elect to redeem Notes pursuant to the optional redemption provisions of Section 3.7, they shall furnish to the Trustee, at least three Business Days (or such shorter period as is acceptable to the Trustee) before sending a notice of such redemption to the Holders, a notice setting forth the (i) section of this Indenture pursuant to which the redemption shall occur, (ii) redemption date and (iii) aggregate principal amount of Notes to be redeemed. Any such notice to the Trustee may be cancelled at any time prior to notice of such redemption being sent to any Holder and shall thereby be void and of no effect.

Section 3.2.         Selection of Notes to Be Redeemed. In the event that less than all of the Notes are to be redeemed at any time, the Trustee shall select the Notes to be redeemed among the Holders on a pro rata basis to the extent practicable or by lot or by such other method as the Trustee shall deem fair and appropriate (except that any Notes represented by a Global Note will be redeemed by such method as the Depositary may require) unless otherwise required by law or any applicable depositary or stock exchange requirements; provided, however, that no Notes of a principal amount of $2,000 in aggregate principal amount or less shall be selected for redemption in part.

On and after the redemption date, unless the Issuers default in the payment of the redemption price, interest will cease to accrue on Notes or portions thereof called for redemption so long as the Issuers have deposited with the Paying Agent funds in satisfaction of the applicable redemption price pursuant to this Indenture (including accrued and unpaid interest, if any, on the Notes to be redeemed to, but excluding, the redemption date). The Trustee shall promptly notify the Issuers in writing of the Notes selected for redemption. The Trustee may select for redemption portions (equal to $1,000 or any integral multiples of $1,000 thereof) of the principal of the Notes that have minimum denominations larger than $2,000.

Section 3.3.         Notice of Optional Redemption. The Issuers shall deliver or cause to be delivered in accordance with Section 12.2, a notice of optional redemption to each Holder whose Notes are to be redeemed (with a copy to the Trustee), at least 30 days but not more than 60 days before a redemption date (except that redemption notices may be delivered more than 60 days prior to a redemption date if the notice is issued in connection with a transaction effected pursuant to Article VIII). Any notice of redemption made in connection with a related transaction or event (including, without limitation, a Qualified Equity Offering, Change of Control, Asset Sale, financing or other transaction) may, at the Issuers’ discretion, be given prior to the completion or the occurrence thereof, and any such redemption or notice may, at the Issuers’ discretion, be subject to one or more conditions precedent, including, but not limited to, the completion or occurrence of the related transaction or event, as the case may be. In addition, if such redemption is subject to satisfaction of one or more conditions precedent, such notice will describe each such condition, and if applicable, will state that, in the Issuers’ discretion, the redemption date may be delayed until such time (including more than 60 days after the date the notice of redemption was mailed or delivered, including by electronic transmission) as any or all such conditions are satisfied (or waived by the Issuers in their sole discretion), or that such redemption may not occur and such notice may be rescinded in the event that any or all such conditions are not satisfied (or waived by the Issuers in their sole discretion) by the redemption date, or by the redemption date as so delayed, or that such notice may be rescinded at any time in the Issuers’ discretion if, as determined in good faith by the Issuers, any or all of such conditions will not be satisfied. If one or more conditions specified with respect to a redemption are not satisfied or waived or are delayed, the redemption date shall be deemed not to have occurred or shall be delayed, as applicable, for all purposes under this Indenture, and the Issuers shall give notice of such non-occurrence or delay to the Holders and to the Trustee. In addition, the Issuers may provide in such notice that payment of the redemption price and performance of the Issuers’ obligations with respect to such redemption may be performed by another Person.

The notice shall identify the Notes to be redeemed (including “CUSIP” numbers and corresponding “ISINs,” if applicable) and shall state:

(1)            the redemption date;

(2)            the redemption price (or the method by which it is to be determined);

(3)            if any Note is being redeemed in part, the portion of the principal amount of such Note to be redeemed and that, after the redemption date, upon surrender of such Note, a new Note or Notes in principal amount equal to the unredeemed portion shall be issued upon cancellation of the original Note (or appropriate adjustments to the amount and beneficial interests in a Global Note will be made, as appropriate);

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

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

(6)            that, unless the Issuers default in making such redemption payment, interest, if any, on Notes called for redemption ceases to accrue on and after the redemption date;

(7)            the paragraph of the Notes and/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 number, if any, listed in such notice or printed on the Notes; and

(9)            any conditions precedent to such redemption.

At the Issuers’ written request, the Trustee shall give the notice of redemption in the Issuers’ name and at the Issuers’ expense; provided, however, that the Issuers shall have delivered to the Trustee, at least three Business Days prior to the date of the giving of the notice of redemption (or such shorter period as is acceptable to the Trustee), an Officer’s Certificate requesting that the Trustee give such notice and setting forth the information to be stated in the notice as provided in the preceding paragraph. Any such request to the Trustee may be revoked or cancelled at any time prior to notice of such redemption being sent to any Holder and shall thereby be void and of no effect. The notice sent in the manner herein provided shall be deemed to have been duly 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 shall not affect the validity of the proceeding for the redemption of any other Note. The notice of redemption issued pursuant to Section 3.7(a) need not set forth the Applicable Premium but only the manner of calculation thereof.

Section 3.4.         Effect of Notice of Redemption. Once notice of redemption is delivered in accordance with Section 3.3, the Notes called for redemption become due and payable on the redemption date at the applicable redemption price, subject to satisfaction of any conditions specified in the notice of redemption.

Section 3.5.         Deposit of Redemption Price. On or before 11:00 a.m. (New York City time) on the redemption date, the Issuers shall deposit with the Trustee or with the Paying Agent (or, if the Issuers or a Subsidiary of Holdings is the Paying Agent, shall segregate and hold in trust) money sufficient to pay the redemption price on all Notes to be redeemed on that date. The Trustee or the Paying Agent shall promptly return to the Issuers any money deposited with the Trustee or the Paying Agent by the Issuers in excess of the amounts necessary to pay the redemption price of all Notes to be redeemed.

If Notes called for redemption or tendered in a Collateral Disposition Offer, Net Proceeds Offer or Change of Control Offer are paid or if the Issuers have deposited with the Trustee or Paying Agent money sufficient to pay the redemption or purchase price of, and unpaid and accrued interest, if any, on, all Notes to be redeemed or purchased, on and after the redemption or purchase date, interest, if any, shall cease to accrue on the Notes or the portions of Notes called for redemption or tendered and not withdrawn in a Collateral Disposition Offer, Net Proceeds Offer or Change of Control Offer (regardless of whether certificates for such securities are actually surrendered). If a Note is redeemed or purchased on or after an interest record date but on or prior to the related interest payment date, then any accrued and unpaid interest, if any, shall be paid to the Person in whose name such Note was registered at the close of business on such record date. If any Note called for redemption shall not be so paid upon surrender for redemption because of the failure of the Issuers to comply with the preceding paragraph, interest, if any, 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, if any, not paid on such unpaid principal, in each case, at the rate provided in the Notes and in Section 4.1.

Section 3.6.         Notes Redeemed in Part. Upon surrender and cancellation of a Note that is redeemed in part, the Issuers shall issue and, upon receipt of an Authentication Order from the Issuers, the Trustee shall authenticate for the Holder at the expense of the Issuers a new Note equal in principal amount to the unredeemed portion of the Note surrendered and canceled; provided that each such new Note will be in a minimum denomination of $2,000 or integral multiples of $1,000 in excess thereof.

Section 3.7.         Optional Redemption.

(a)            The Notes may be redeemed, in whole or in part, at any time or from time to time prior to July 1, 2022, at the option of the Issuers, upon notice as provided in Section 3.3, at a redemption price equal to 100.0% of the principal amount of the Notes redeemed plus the Applicable Premium, and accrued and unpaid interest, if any, to, but excluding, the applicable redemption date (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date that is on or prior to the redemption date). The Issuers will calculate the Treasury Rate and Applicable Premium and, prior to the redemption date, provide an Officer’s Certificate to the Trustee setting forth the Treasury Rate and the Applicable Premium and showing the calculation of each in reasonable detail. The Trustee shall be permitted to conclusively rely on such Officer’s Certificate and shall have no duty to confirm or verify such calculations.

(b)            At any time or from time to time on or after July 1, 2022, the Issuers, at their option, may redeem the Notes, in whole or in part, upon notice as provided in Section 3.3, at the redemption prices (expressed as percentages of principal amount of the Notes to be redeemed) set forth below, together with accrued and unpaid interest thereon, if any, to, but excluding, the applicable redemption date (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date that is on or prior to the redemption date), if redeemed during the 12-month period beginning on July 1 of the years indicated below:

(c)            At any time or from time to time prior to July 1, 2022, the Issuers, at their option, may, on any one or more occasions, redeem up to 40.0% of the principal amount of the outstanding Notes issued under this Indenture (including any Additional Notes issued after the Issue Date), upon notice as provided in Section 3.3, in an amount not greater than the net cash proceeds of one or more Qualified Equity Offerings at a redemption price equal to 109.500% of the principal amount of the Notes to be redeemed, plus accrued and unpaid interest thereon, if any, to, but excluding, the redemption date (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date that is on or prior to the redemption date); provided that:

(1)            at least 60.0% of the aggregate principal amount of Notes originally issued under this Indenture on the Issue Date (including any Additional Notes but excluding Notes held by Holdings and its Subsidiaries) remains outstanding immediately after giving effect to any such redemption; and

(2)            the redemption occurs not more than 180 days after the date of the closing of any such Qualified Equity Offering.

Section 3.8.         Optional Redemption for Changes in Withholding Taxes.

(a)            The Issuers are entitled to redeem the Notes, at their option, at any time in whole but not in part, upon not less than 30 nor more than 60 days’ notice to the Holders, at a redemption price equal to 100% of the outstanding principal amount thereof, plus accrued and unpaid interest, if any, to, but excluding, the date of redemption (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date that is on or prior to the redemption date), in the event any Payor has become or would become obligated to pay, on the next date on which any amount would be payable with respect to the Notes, any Additional Amounts (but, in the case of a Guarantor, only if such amount could not be paid by the Issuers or another Guarantor who can pay such amount without the obligation to pay Additional Amounts), in each case, as a result of:

(1)            a change in, or an amendment to, the laws (including any regulations or rulings promulgated thereunder) or treaties of any Relevant Taxing Jurisdiction; or

(2)            any change in, amendment to, or introduction of any official published position regarding the application, administration or interpretation of such laws or treaties (including any regulations or rulings promulgated thereunder and including the decision of any court, governmental agency or tribunal),

which change, amendment or introduction is publicly announced and becomes effective on or after the Issue Date, and the Payor cannot avoid such obligation by taking reasonable measures available to it (including making payment through a Paying Agent located in another jurisdiction); provided that such Payor will not be required to take any measures that would result in the imposition on it of any material legal or regulatory burden or the incurrence by it of any material additional costs, or would otherwise result in any material adverse consequences. The foregoing provisions will apply mutatis mutandis to the laws and official positions of any jurisdiction in which any successor permitted under Section 5.1 is incorporated, organized or otherwise resident for tax purposes, or engaged in business for tax purposes, or in each case any political subdivision or taxing authority or agency thereof or therein.

(b)            Prior to the giving of any notice of redemption described in Section 3.8(a), the Issuers will deliver to the Trustee an Officer’s Certificate to the effect that the Payor cannot avoid its obligation to pay Additional Amounts by taking reasonable measures available to it. The Issuers will also deliver to the Trustee an Opinion of Counsel to the effect that the Payor would be obligated to pay Additional Amounts as a result of a change, amendment, or introduction described above. Absent manifest error, the Trustee will accept such Opinion of Counsel as sufficient evidence of the Payor’s obligation to pay such Additional Amounts, and it will be conclusive and binding on the Holders.

Section 3.9.         Mandatory Redemption.

The Issuers are not required to make mandatory redemption or sinking fund payments with respect to the Notes.

ARTICLE IV
COVENANTS

Section 4.1.         Payment of Notes.

The Issuers shall pay or cause to be paid the principal of, premium, if any, and interest on the Notes on the dates and in the manner provided in the Notes. Principal, premium, if any, and interest shall be considered paid for all purposes hereunder on the date the Trustee or the Paying Agent (if other than Holdings, the Issuers or a Subsidiary thereof) holds, as of 11:00 a.m. (New York City time) on the relevant payment date, U.S. dollars deposited by the Issuers in immediately available funds and designated for and sufficient to pay all such principal, premium, if any, and interest then due. The Issuers shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal at the rate equal to the then applicable interest rate on the Notes to the extent lawful; they 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 4.2.         Maintenance of Office or Agency.

(a)            The Issuers will 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 Issuers in respect of the Notes and this Indenture may be served. The Issuers will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Issuers fail to maintain any such required office or agency or fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee; provided, however, no service of legal process may be made at any office of the Trustee.

(b)            The Issuers may also from time to time designate one or more other offices or agencies where the Notes may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission will in any manner relieve the Issuers of its obligation to maintain an office or agency for such purposes. The Issuers will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.

(c)            The Issuers hereby designate the Corporate Trust Office of the Trustee as one such office or agency of the Issuers in accordance with Section 2.3 hereof.

Section 4.3.         Provision of Financial Information.

(a)            Whether or not required by the SEC, so long as any Notes are outstanding, Holdings will furnish to the Trustee and to the Holders, within the time periods specified in the SEC’s rules and regulations including any extension periods available under such rules and regulations and excluding any requirement and time periods applicable to “accelerated filers” (as defined in Rule 12b-2 under the Exchange Act) under such rules and regulations, and make available to securities analysts and potential investors upon request:

(1)            all quarterly and annual financial information that would be required to be contained in a filing with the SEC on Forms 10-Q and 10-K if Holdings were required to file such Forms, including a “Narrative Analysis of Results of Operations” or “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” as applicable, and, with respect to the annual information only, a report on the annual financial statements by Holdings’ certified independent accountants; and

(2)            all current reports that would be required to be filed with the SEC on Form 8-K if Holdings were required to file such reports;

provided, however, that (i) in no event shall such reports be required to comply with Rule 3-09, Rule 3-10 or Rule 3-16 of Regulation S-X promulgated by the SEC (except that summary financial information with respect to Non-Guarantor Subsidiaries of the type and scope included in the Offering Memorandum will be required), (ii) in no event shall such reports be required to comply with Regulation G promulgated by the SEC or Item 10(e) of Regulation S-K promulgated by the SEC with respect to any non-GAAP financial measures contained therein, (iii) no such reports referenced under clause (2) above (other than reports referenced in clause (v) below) shall be required to be furnished if Holdings determines in its good faith judgment that such event is not material to the Holders or the business, assets, operations or financial position of Holdings and its Restricted Subsidiaries, taken as a whole, (iv) in no event shall such reports be required to include any information that is not otherwise similar to information currently included in the Offering Memorandum, other than with respect to reports provided under clause (2) above and (v) in no event shall reports referenced in clause (2) above be required to include as an exhibits copies of any agreements, financial statements or other items that would be required to be filed as exhibits to a current report on Form 8-K except for (x) agreements evidencing material Indebtedness and (y) historical and pro forma financial statements to the extent reasonably available and, in any case with respect to pro forma financial statements, to include only pro forma total assets, total debt, senior secured debt, revenues, operating income and capital expenditures in lieu thereof.

(b)            If Holdings has designated as an Unrestricted Subsidiary any of its Subsidiaries that would, individually or in the aggregate, constitute a Significant Subsidiary, then the quarterly and annual financial information required by the Section 4.3(a) will include a reasonably detailed presentation, either on the face of the financial statements or in the footnotes or schedules thereto, or in Narrative Analysis of Results of Operations or Management’s Discussion and Analysis of Financial Condition and Results of Operations, as applicable, of the financial condition and results of operations of Holdings and the Restricted Subsidiaries separate from the financial condition and results of operations of any such Unrestricted Subsidiaries of Holdings.

(c)            So long as any Notes are outstanding, the Issuers will also:

(d)            The Issuers will be (i) deemed to have furnished such reports to the Holders if they maintain a customary website (such as Intralinks) on which the reports required by this Section 4.3 are posted along with details regarding the times and dates of conference calls required above and information on how to access such conference calls (provided that the Holders are given prior written notice of such practice before the first posting thereof) or (ii) deemed to have furnished such reports to the Trustee and the Holders if they file such reports electronically with the SEC through the SEC’s Electronic Data Gathering, Analysis and Retrieval System (or any successor system) (“EDGAR”) (and, in the case of the Trustee, notice will have been provided to the Trustee of such filing).

(e)            For so long as any Notes remain outstanding and are not freely transferable, Holdings will furnish to the Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.

(f)            Any Default or Event of Default arising from a failure to furnish on a timely basis any financial information required by this Section 4.3 will be deemed cured (and Holdings will be deemed to be in compliance with this Section 4.3) upon furnishing such financial information (but without regard for the date on which such information is furnished; provided that such cure occurs prior to an acceleration of the Notes, with any such acceleration not annulled, rescinded or waived by such cure).

(g)            Delivery of such reports and information described in this Section 4.3 to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive or actual notice of any information contained therein or determinable from the information contained therein, including Holdings’, the Issuers’ or the Subsidiary Guarantors’ compliance with any covenants under this Indenture (as to which the Trustee is entitled to rely on an Officer’s Certificate). The Trustee shall not be obliged to monitor or confirm, on a continuing basis or otherwise, the Issuers’ compliance with their covenants hereunder or with respect to any reports or other documents filed with the SEC or EDGAR or any website under this Indenture, or participate in any conference calls.

Section 4.4.         Compliance Certificate. The Issuers shall deliver to the Trustee and the Notes Collateral Agent, within 120 days after the end of each fiscal year beginning with the fiscal year ending December 31, 2020, an Officer’s Certificate stating that a review of the activities of Holdings, the Issuers and their Subsidiaries during the preceding fiscal year has been made under the supervision of the signing Officer with a view to determining whether each has kept, observed, performed and fulfilled their respective obligations under this Indenture (including compliance with the Guaranty and Security Principles), and further stating, as to such Officer signing such certificate, that, to his or her knowledge, each entity has kept, observed, performed and fulfilled each and every covenant contained in this Indenture and is not in default in the performance or observance of any of the terms, provisions and conditions of this Indenture (or, if a Default or Event of Default shall have occurred, describing all such Defaults or Events of Default of which he or she may have knowledge and what action the Issuers are taking or proposes to take with respect thereto) and that, to his or her knowledge, no event has occurred and remains in existence by reason of which payments on account of the principal of, premium, if any, or interest, if any, on the Notes is prohibited or if such event has occurred, a description of the event and what action the Issuers are taking or proposes to take with respect thereto.

The Issuers shall, so long as any of the Notes are outstanding, deliver to the Trustee and the Notes Collateral Agent, within 30 days after any Officer of the Issuers becomes aware of any Default or Event of Default, an Officer’s Certificate specifying such Default or Event of Default and what action the Issuers are taking or propose to take with respect thereto.

Section 4.5.         Taxes. Holdings and the Issuers shall pay, and shall cause each of their respective Subsidiaries to pay, prior to delinquency all material taxes, assessments and governmental levies, except such as are contested in good faith and by appropriate proceedings or where the failure to effect such payment is not adverse in any material respect to the Holders of the Notes.

Section 4.6.         Stay, Extension and Usury Laws. Each of the Issuers and each of the Guarantors covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, plead or in any manner whatsoever claim or take the benefit or advantage of any stay, extension or usury law wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of this Indenture; and each of the Issuers and each of the Guarantors (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it will not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law has been enacted.

Section 4.7.         Limitation on Restricted Payments.

(a)            Holdings shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Payment:

(1)            a Default shall have occurred and be continuing or shall occur as a consequence thereof;

(2)            Holdings is not able to incur at least $1.00 of additional Indebtedness pursuant to the Coverage Ratio Exception; or

(3)            the amount of such Restricted Payment, when added to the aggregate amount of all other Restricted Payments made after the Issue Date (other than Restricted Payments made pursuant to Section 4.7(b)(2) through Section 4.7(b)(12)), exceeds the sum (the “Restricted Payments Basket”) of (without duplication):

(A)            50.0% of Consolidated Net Income of Holdings and its Restricted Subsidiaries for the period (taken as one accounting period) commencing on April 1, 2020 to, and including, the last day of the fiscal quarter ended immediately prior to the date of such calculation for which internal consolidated financial statements are available (or, if such Consolidated Net Income shall be a deficit, minus 100.0% of such deficit), plus

(B)            100.0% of (1) (i) the aggregate net cash proceeds and (ii) the Fair Market Value of (x) marketable securities (other than marketable securities of Holdings or a Subsidiary of Holdings), (y) Equity Interests of a Person (other than Holdings or a Subsidiary of Holdings) engaged in a Permitted Business and (z) other assets used in any Permitted Business, received by Holdings or its Restricted Subsidiaries after the Issue Date, in each case as a contribution to Holdings’ common equity capital or from the issue or sale of Qualified Equity Interests of Holdings or from the issue or sale of convertible or exchangeable Disqualified Equity Interests of Holdings or convertible or exchangeable debt securities of Holdings that have in each case been converted into or exchanged for such Qualified Equity Interests (other than (x) Equity Interests or debt securities sold to a Subsidiary of Holdings or (y) net cash proceeds received by Holdings from Qualified Equity Offerings to the extent applied to redeem the Notes in accordance with Section 3.7(c)), and (2) the aggregate net cash proceeds, if any, received by Holdings or any of its Restricted Subsidiaries upon any conversion or exchange described in clause (1) above, plus

(C)            with respect to any Unrestricted Subsidiary that has been redesignated as a Restricted Subsidiary after the Issue Date, the Fair Market Value of the aggregate Restricted Investments made by Holdings and its Restricted Subsidiaries in such Unrestricted Subsidiary prior to the time of such redesignation, plus

(D)            to the extent not already included in Consolidated Net Income for such period, an amount equal to the sum, without duplication, of (1) if any Restricted Investment that was made by Holdings or any Restricted Subsidiary after the Issue Date is sold for cash or otherwise liquidated or repaid for cash, the cash return of capital with respect to such Restricted Investment resulting from such sale, liquidation or repayment (less any out-of-pocket costs incurred in connection with any such sale) plus (2) the net reduction in such Restricted Investment resulting from (i) repayments of loans or advances, or other transfers of assets, in each case to Holdings or any of its Restricted Subsidiaries, (ii) other repurchases, repayments or redemptions of such Restricted Investments and (iii) the release of any Guarantee (except to the extent any amounts are paid under such Guarantee) that constituted a Restricted Investment, plus

(E)            the amount by which Indebtedness of Holdings or its Restricted Subsidiaries is reduced on Holdings’ balance sheet upon the conversion or exchange (other than by a Subsidiary of Holdings) subsequent to the Issue Date of any such Indebtedness for Equity Interests (other than Disqualified Equity Interests) of Holdings (less the amount of any cash, or the Fair Market Value of any other property (other than such Equity Interests), distributed by Holdings upon such conversion or exchange and excluding the net cash proceeds from the conversion or exchange financed, directly or indirectly, using funds borrowed from Holdings or any Subsidiary), together with the net proceeds, if any, received by Holdings or any of its Restricted Subsidiaries upon such conversion or exchange, plus

(F)            100% of any dividends or distributions received by Holdings or any of its Restricted Subsidiaries after the Issue Date from an Unrestricted Subsidiary, to the extent such dividends or distributions were not otherwise included in Consolidated Net Income of Holdings for such period.

(b)            Notwithstanding the foregoing, Section 4.7(a) shall not prohibit:

(1)            the payment of any dividend or redemption payment or the making of any distribution within 60 days after the date of declaration or issuance of the notice of redemption thereof if, on the date of declaration or issuance of the notice of redemption, the dividend, redemption or distribution payment, as the case may be, would have complied with the provisions of this Indenture;

(2)            any Restricted Payment made in exchange for, or out of the proceeds of, the substantially concurrent issuance and sale of Qualified Equity Interests (an issuance or sale being deemed substantially concurrent if the Restricted Payment occurs within 90 days after the issuance or sale);

(3)            the purchase, repurchase, redemption, defeasance or other acquisition or retirement for value of Subordinated Indebtedness of Holdings or any Restricted Subsidiary in exchange for, or out of the proceeds of, the substantially concurrent incurrence of, Refinancing Indebtedness permitted to be incurred under Section 4.9 and the other terms of this Indenture;

(4)            the purchase, repurchase, redemption, defeasance or other acquisition or retirement for value of Subordinated Indebtedness of Holdings or any Restricted Subsidiary (a) at a purchase price not greater than 101.0% of the principal amount of such Subordinated Indebtedness in the event of a Change of Control in accordance with provisions similar to Section 4.13 or (b) at a purchase price not greater than 100.0% of the principal amount thereof in accordance with provisions similar to Section 4.10; provided that, prior to or simultaneously with such purchase, repurchase, redemption, defeasance or other acquisition or retirement, the Issuers have made the Change of Control Offer, Collateral Disposition Offer or Net Proceeds Offer, as applicable, as provided in such Section 4.13 or Section 4.10 with respect to the Notes and has completed the repurchase or redemption of all Notes validly tendered for payment in connection with such Change of Control Offer, Collateral Disposition Offer or Net Proceeds Offer;

(5)            so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the redemption, repurchase or other acquisition or retirement for value of Equity Interests of Holdings held by officers, directors or employees or former officers, directors or employees (or their heirs, family members, spouses, former spouses, transferees, estates or beneficiaries under their estates), either (x) upon any such individual’s death, disability, retirement, severance or termination of employment or service or (y) pursuant to any equity subscription agreement, stock option agreement, stockholders’ agreement or similar agreement; provided, in any case, that the aggregate cash consideration paid for all such redemptions, repurchases or other acquisitions or retirements shall not exceed (A) $5.0 million during any calendar year (with unused amounts in any calendar year being carried forward to subsequent calendar years (but no more than $10.0 million in any one calendar year)), plus (B) the amount of any net cash proceeds received by or contributed to Holdings from the issuance and sale after the Issue Date of Qualified Equity Interests to its officers, directors or employees that have not been applied to the payment of Restricted Payments pursuant to this Section 4.7(b)(5), plus (C) the net cash proceeds of any “key-man” life insurance policies that have not been applied to the payment of Restricted Payments pursuant to this Section 4.7(b)(5); and provided, further that cancellation of Indebtedness owing to Holdings or any Restricted Subsidiary from employees of Holdings or any Restricted Subsidiary in connection with a repurchase of Equity Interests of Holdings will not be deemed to constitute a Restricted Payment for purposes of this Section 4.7 or any other provision of this Indenture;

(6)            (A) repurchases, redemptions or other acquisitions or retirements for value of Equity Interests of Holdings deemed to occur upon the exercise of stock options, warrants, rights to acquire Equity Interests of Holdings or other convertible securities (or other similar arrangements to acquire Equity Interests) to the extent such Equity Interests of Holdings represent a portion of the exercise or exchange price thereof and (B) any repurchase, redemptions or other acquisitions or retirements for value of Equity Interests of Holdings made in lieu of withholding taxes in connection with any exercise, vesting or exchange of stock options, restricted stock, restricted stock units, performance stock units, warrants or similar rights or other equity compensation;

(7)            so long as no Default or Event of Default has occurred and is continuing or would result therefrom, dividends or distributions on Disqualified Equity Interests of Holdings or any Restricted Subsidiary or on any Preferred Stock of any Restricted Subsidiary, in each case, which Preferred Stock or Disqualified Equity Interests were issued in compliance with Section 4.9 to the extent such dividends or distributions are included in the definition of Consolidated Interest Expense;

(8)            payments of cash, dividends, distributions, advances or other Restricted Payments by Holdings or its Restricted Subsidiaries to allow (A) the payment of cash in lieu of fractional Equity Interests of Holdings or (B) the repurchase, redemption or other acquisition or retirement for value by Holdings of fractional Equity Interests arising out of dividends, splits or combinations, business combinations or other transactions permitted by this Indenture;

(9)            payments or distributions to dissenting stockholders pursuant to applicable law in connection with a merger, consolidation, amalgamation, reorganization or transfer of assets that complies with Section 5.1;

(10)            cash distributions by Holdings to the holders of Equity Interests of Holdings in accordance with a distribution reinvestment plan or dividend reinvestment plan to the extent such payments are applied to the purchase of Equity Interests directly from Holdings;

(11)            so long as no Default or Event of Default has occurred and is continuing or would result therefrom, payment of other Restricted Payments from time to time in an aggregate amount since the Issue Date not to exceed the greater of (i) $25.0 million and (ii) 1.0% of Consolidated Total Assets;

(12)            Restricted Payments to Holdings or any Restricted Subsidiary (or, in the case of non-Wholly-Owned Subsidiaries, to Holdings and to each other owner of Equity Interests of such Restricted Subsidiary) on a pro rata basis (or more favorable basis from the perspective of Holdings or such Restricted Subsidiary) based on their relative ownership interests so long as any repurchase of its Equity Interests from a Person that is not Holdings or a Restricted Subsidiary is permitted under Section 4.8;

(13)            Restricted Payments in connection with the issuance of Equity Interests to management or employees pursuant to and in accordance with compensation agreements with such management or employees of Holdings and its Subsidiaries in such reasonably estimated amounts as are necessary to satisfy the tax obligations of such management or employees (including estimated tax payments) as a result of the issuance of such Equity Interests;

(14)            any Restricted Payment if (A) no Default or Event of Default shall have occurred and be continuing immediately prior to making such Restricted Payment or would result therefrom and (B) the Total Net Leverage Ratio, on a pro forma basis, is less than or equal to 2.20 to 1.00; and

(15)            any Restricted Payments (x) in the form of cash distributions with respect to any taxable period in which Holdings or any of its Restricted Subsidiaries is treated as a disregarded entity, partnership or S corporation for U.S. federal income tax purposes or is a member of a consolidated, combined, unitary or similar tax group with any equityholders, to enable any equityholders to pay any taxes attributable solely to the income, operations and/or ownership of Holdings and/or its Restricted Subsidiaries or its Unrestricted Subsidiaries to the extent of any cash distribution from such Unrestricted Subsidiaries made to Holdings or any of its Restricted Subsidiaries, as applicable, or (y) to permit any direct or indirect parent to pay franchise taxes and other similar taxes and expenses, in each case, in connection with the maintenance of its legal existence;

provided that no issuance and sale of Qualified Equity Interests used to make a payment pursuant to Section 4.7(b)(2) or Section 4.7(b)(5)(B) above shall increase the Restricted Payments Basket to the extent of such payment.

(c)            For purposes of determining compliance with any U.S. dollar-denominated restriction on Restricted Payments denominated in a foreign currency, the U.S. dollar-equivalent amount of such Restricted Payment shall be calculated based on the relevant currency exchange rate in effect on the date that such Restricted Payment was made. The amount of any Restricted Payment (other than cash) will be the Fair Market Value on the date of the Restricted Payment (or, in the case of a dividend, on the date of declaration) of the assets or securities proposed to be transferred or issued by Holdings or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment.

Section 4.8.            Limitation on Dividend and Other Restrictions Affecting Restricted Subsidiaries.

Holdings shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:

(a)            pay dividends or make any other distributions on or in respect of its Equity Interests to Holdings or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Equity Interests);

(b)            make loans or advances, or pay any Indebtedness or other obligation owed, to Holdings or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to Holdings or any Restricted Subsidiary to other Indebtedness or obligations incurred by Holdings or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or

(c)            transfer any of its property or assets to Holdings or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or (b) above);

except for, in each case:

(1)            encumbrances or restrictions existing under agreements existing on the Issue Date (including, without limitation, the Term Loan Credit Facility and the ABL Credit Facility) as in effect on that date;

(2)            encumbrances or restrictions existing under this Indenture, the Notes (including any Additional Notes), the Guarantees, the Intercreditor Agreements and the Security Documents;

(3)            any instrument governing Acquired Indebtedness or Equity Interests of a Person acquired by or merged with or into Holdings or any of its Restricted Subsidiaries, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person or the properties or assets of the Person so acquired or any Restricted Subsidiary having no assets other than the Person or the properties or assets of the Person so acquired (including the Equity Interests of such Person) and other de minimis assets;

(4)            any agreement or other instrument of a Person acquired by or merged with or into Holdings or any of its Restricted Subsidiaries in existence at the time of such acquisition (but not created in contemplation thereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person and its Subsidiaries, or the property or assets of the Person and its Subsidiaries, so acquired (including after-acquired property) or any Restricted Subsidiary having no assets other than the Person or the properties or assets of the Person so acquired (including the capital stock of such Person) and other de minimis assets;

(5)            customary restrictions and conditions contained in any agreement relating to the sale, transfer or other disposition of any asset permitted under Section 4.10 pending the consummation of such sale, transfer or other disposition;

(6)            any amendment, restatement, modification, renewal, increase, supplement, refunding, replacement or refinancing of an agreement referred to in this Section 4.8; provided, however, that such amendments, restatements, modifications, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of Holdings, not materially more restrictive, taken as a whole, than the encumbrances and restrictions contained in the agreement prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing;

(7)            encumbrances or restrictions existing under or by reason of applicable law, regulation, order, approval, license, permit or similar restriction or agreement with governmental authorities with respect to assets located in their jurisdiction;

(8)            non-assignment or non-subletting provisions of any contract, license or any lease entered into in the ordinary course of business and customary provisions contained in agreements related to the license of intellectual property;

(9)            Liens permitted to be incurred under Section 4.12;

(10)          restrictions imposed under any agreement to sell or dispose of Equity Interests or assets, as permitted under this Indenture, to any Person pending the closing of such sale;

(11)          customary restrictions on leases, subleases, licenses or Equity Interests or asset sale agreements otherwise permitted hereby as long as such restrictions relate to the Equity Interests and assets subject thereto;

(12)          any other agreement governing Indebtedness or other obligation entered into after the Issue Date that either (A) contains encumbrances and restrictions that in the good faith judgment of Holdings are not materially more restrictive, taken as a whole, with respect to any Restricted Subsidiary than those in effect on the Issue Date with respect to that Restricted Subsidiary pursuant to agreements in effect on the Issue Date or those contained in this Indenture, the Notes and the Guarantees or (B) contains encumbrances or restrictions that are customary and do not prohibit (except upon a default or an event of default thereunder) the payment of dividends in an amount sufficient, as determined by Holdings in good faith, to make scheduled payments of cash interest and principal on the Notes when due;

(13)          customary provisions in partnership agreements, limited liability company organizational governance documents, joint venture agreements, shareholder agreements and other similar agreements entered into in the ordinary course of business that restrict the disposition or distribution of ownership interests in or assets of such partnership, limited liability company, joint venture, corporation or similar Person;

(14)          Purchase Money Indebtedness, security agreements or mortgage financings for property acquired in the ordinary course of business and any Refinancing Indebtedness in respect thereof incurred in compliance with Section 4.9 that imposes restrictions of the nature described in clause (17) below on the assets acquired;

(15)          restrictions on cash, Cash Equivalents or other deposits or net worth imposed by customers, suppliers, lessors or landlords under contracts or leases entered into in the ordinary course of business;

(16)          any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary; provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction shall not extend to any assets or property of Holdings or any other Restricted Subsidiary other than the assets and property so acquired;

(17)          any restriction on a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of the Equity Interests or assets of a Restricted Subsidiary pending the closing of such sale or disposition;

(18)          any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was incurred if either (A) the encumbrance or restriction applies only in the event of a Payment Default or a default with respect to a financial covenant in such Indebtedness or agreement or (B) Holdings determines that any such encumbrance or restriction will not materially affect the Issuers’ ability to make principal or interest payments on the Notes, as determined in good faith by the Board of Directors or management of Holdings, whose determination shall be conclusive; and

(19)          supermajority voting requirements existing under corporate charters, by-laws, stockholders agreements and similar documents and agreements.

Section 4.9.            Limitation on Additional Indebtedness.

(a)            Holdings shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, incur any Indebtedness (including Acquired Indebtedness); provided that Holdings, the Issuers or any Subsidiary Guarantor may incur additional Indebtedness (including Acquired Indebtedness), in each case, if, after giving effect thereto on a pro forma basis (including giving pro forma effect to the application of the proceeds thereof), Holdings’ Consolidated Interest Coverage Ratio would be at least 2.00 to 1.00 (the “Coverage Ratio Exception”).

(b)            Notwithstanding the above, each of the following incurrences of Indebtedness shall be permitted (the “Permitted Indebtedness”):

(1)            Indebtedness of Holdings, the Issuers or any Subsidiary Guarantor under one or more Debt Facilities in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including the issuance and creation of letters of credit and bankers’ acceptances thereunder (with letters of credit and bankers’ acceptances being deemed to have a principal amount equal to the face amount thereof) and any guarantees thereunder not to exceed the sum of (a) $375.0 million and (b) the greater of (i) $400.0 million and (ii) the Borrowing Base determined as of the time of incurrence;

(2)            Indebtedness represented by:

(A)            the Initial Notes and related Guarantees (excluding any Additional Notes and related Guarantees);

(B)            additional Pari Passu Notes Lien Indebtedness or Junior Lien Indebtedness in an aggregate principal amount (including any other then-outstanding Pari Passu Notes Lien Indebtedness (other than the Notes and the Term Loan Obligations)) not to exceed an amount such that, after giving effect to such incurrence and the use of proceeds thereof, the Pari Passu Lien Net Leverage Ratio would not exceed 1.50 to 1.00; and

(C)            Junior Lien Indebtedness in an aggregate principal amount (including any other then-outstanding Junior Lien Indebtedness) not to exceed an amount such that, after giving effect to such incurrence and the use of proceeds thereof, the Total Net Leverage Ratio would not exceed 3.20 to 1.00;

(3)            existing Indebtedness of Holdings and its Restricted Subsidiaries (other than Indebtedness referred to in Section 4.9(b)(1) and Section 4.9(b)(2)(A));

(4)            guarantees by (a) the Issuers or any Guarantor of Indebtedness, which Indebtedness is permitted to be incurred by the Issuers or any Guarantor in accordance with the provisions of this Indenture; provided that in the event such Indebtedness that is being guaranteed is Subordinated Indebtedness, then the related guarantee shall be subordinated in right of payment to the Notes or the Guarantees, as the case may be, and (b) Non-Guarantor Subsidiaries of Indebtedness incurred by Non-Guarantor Subsidiaries in accordance with the provisions of this Indenture;

(5)            Indebtedness under Hedging Obligations entered into for bona fide hedging purposes of Holdings or any Restricted Subsidiary in the ordinary course of business and not for speculation purposes, including any obligations with respect to letters of credit issued in connection therewith;

(6)            Indebtedness of Holdings or the Issuers owed to and held by another Restricted Subsidiary and Indebtedness of any Restricted Subsidiary owed to and held by Holdings or any other Restricted Subsidiary; provided, however, that

(A)            if Holdings or the Issuers are the obligors on Indebtedness and a Non-Guarantor Subsidiary is the obligee, such Indebtedness is expressly subordinated in right of payment to the prior payment in full in cash of all Obligations with respect to the Notes or is subordinated in right of payment to the Holdings Guarantee, as the case may be;

(B)            if a Guarantor is the obligor on such Indebtedness and a Non-Guarantor Subsidiary is the obligee, such Indebtedness is subordinated in right of payment to the Guarantee of such Guarantor; and

(C)            (i)           any subsequent issuance or transfer of Equity Interests or any other event which results in any such Indebtedness being held by a Person other than Holdings or any other Restricted Subsidiary; and

(ii)            any sale or other transfer of any such Indebtedness to a Person other than Holdings or any other Restricted Subsidiary

shall be deemed, in each case of this Section 4.9(b)(6)(C), to constitute an incurrence of such Indebtedness not permitted by this Section 4.9(b)(6);

(7)            Indebtedness in respect of workers’ compensation claims, bank guarantees, warehouse receipt or similar facilities, property, casualty or liability insurance, take-or-pay obligations in supply arrangements, self-insurance obligations or completion, performance, bid performance, appeal, deposit or surety bonds, in the ordinary course of business, including guarantees or obligations or reimbursement obligations with respect to letters of credit issued in the ordinary course of business, including letters of credit supporting such workers’ compensation claims, obligations to direct and indirect tax authorities and agencies, warehouse or manufacturing facility or receipt or similar facilities, property, casualty or liability insurance, take-or-pay obligations in supply arrangements, self-insurance obligations or completion, performance, bid performance, appeal or surety bonds, or other similar obligations, including, in the case of each of the above, those incurred to secure health, disability and other employee benefits (whether to current or former employees) and safety and environmental obligations, in the ordinary course of business;

(8)            Purchase Money Indebtedness incurred by Holdings or any Restricted Subsidiary in an aggregate principal amount, taken together with Refinancing Indebtedness in respect thereof, not to exceed at any time outstanding the greater of (a) $40.0 million and (b) 2.0% of Holdings’ Consolidated Total Assets determined at the time of incurrence; provided that such Indebtedness is incurred within 270 days after the purchase, lease, construction, installation, repair or improvement of the property that is the subject of such Indebtedness;

(9)            Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business;

(10)          Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business;

(11)          Refinancing Indebtedness with respect to Indebtedness incurred pursuant to the Coverage Ratio Exception or with respect to Indebtedness incurred pursuant to Section 4.9(b)(2), Section 4.9(b)(3) or Section 4.9(b)(8) above, this Section 4.9(b)(11) or Section 4.9(b)(13), Section 4.9(b)(15), Section 4.9(b)(16), Section 4.9(b)(17) or Section 4.9(b)(24) below;

(12)          indemnification, adjustment of purchase or acquisition price, earn-out or similar obligations, in each case, incurred or assumed in connection with the acquisition or disposition of any business or assets of Holdings or any Restricted Subsidiary or Equity Interests of a Restricted Subsidiary, other than guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or Restricted Subsidiaries for the purpose of financing such acquisition;

(13)          additional Indebtedness of Holdings or any Restricted Subsidiary in an aggregate principal amount which, when taken together with the principal amount of all other Indebtedness incurred pursuant to this Section 4.9(b)(13) and then outstanding, will not exceed the greater of (a) $100.0 million and (b) 4.0% of Holdings’ Consolidated Total Assets determined at the time of incurrence;

(14)          Indebtedness in respect of Specified Cash Management Agreements entered into in the ordinary course of business;

(15)          Indebtedness of Persons incurred and outstanding on the date on which such Person (or its assets) was acquired by Holdings or any Restricted Subsidiary, or merged or consolidated with or into Holdings or any Restricted Subsidiary, and Indebtedness incurred by Holdings or any Restricted Subsidiary in order to finance and consummate one or more acquisitions, mergers, amalgamations or consolidations; provided, however, that at the time such Person or assets is/are acquired by Holdings or a Restricted Subsidiary, or merged or consolidated with Holdings or any Restricted Subsidiary, or at the time of such merger, amalgamation, acquisition or consolidation, and after giving pro forma effect to the incurrence of such Indebtedness pursuant to this Section 4.9(b)(15) and any other related Indebtedness and the use of proceeds thereof, either (i) Holdings or the Issuers would have been able to incur $1.00 of additional Indebtedness pursuant to the Coverage Ratio Exception or (ii) the Consolidated Interest Coverage Ratio of Holdings and its Restricted Subsidiaries would be greater than or equal to such Consolidated Interest Coverage Ratio immediately prior to such acquisition, merger, amalgamation or consolidation;

(16)          Indebtedness of Non-Guarantor Subsidiaries in an aggregate principal amount which, when taken together with Refinancing Indebtedness in respect thereof, may not exceed the greater of (a) $25.0 million and (b) 1.0% of Consolidated Total Assets as of the date any such Indebtedness is incurred; provided that the principal amount of any Indebtedness incurred pursuant to this Section 4.9(b)(16) will decrease the amount of Indebtedness that may be incurred pursuant to Section 4.9(b)(17) by the same amount;

(17)          Indebtedness of Venator Italy S.r.l., Venator Pigments S.r.l., Pacific Iron Products Sdn Bhd and Venator Asia Sdn. Bhd. in an aggregate principal amount which, when taken together with Refinancing Indebtedness in respect thereof and any Indebtedness incurred pursuant to Section 4.9(b)(16), may not exceed the greater of (a) $75.0 million and (b) 3.0% of Consolidated Total Assets as of the date any such Indebtedness is incurred;

(18)          Indebtedness to the extent the net proceeds thereof are deposited to defease or satisfy and discharge the Notes in their entirety;

(19)          customer deposits and advance payments received in the ordinary course of business from customers for goods purchased in the ordinary course of business;

(20)          Indebtedness issued to future, current or former officers, directors, managers and employees, consultants and independent contractors of Holdings or any Restricted Subsidiary or any direct or indirect parent thereof, their respective estates, heirs, family members, spouse or former spouses, in each case to finance the purchase or redemption of Equity Interests of any direct or indirect parent permitted by Section 4.7;

(21)          (a) unsecured Indebtedness in respect of short-term obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in the ordinary course of business and not in connection with the borrowing of money and (b) customer deposits and advance payments received in the ordinary course of business from customers for goods purchased in the ordinary course of business;

(22)          Indebtedness consisting of (a) the financing of insurance premiums or (b) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business;

(23)          Indebtedness supported by a letter of credit, in a principal amount not in excess of the stated amount of such letter of credit;

(24)          Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of such Indebtedness, taken together with Refinancing Indebtedness in respect thereof, may not exceed the greater of (a) $25.0 million and (b) 1.0% of Consolidated Total Assets as of the date any such Indebtedness is incurred;

(25)          Indebtedness incurred by a Receivables Subsidiary in a Qualified Receivables Financing that is not recourse to Holdings, the Issuers or any Restricted Subsidiary other than a Receivables Subsidiary (except for Standard Securitization Undertakings); and

(26)          the incurrence by Holdings or any of its Restricted Subsidiaries of liability in respect of Indebtedness of any Unrestricted Subsidiary of Holdings or any joint venture but only to the extent that such liability is the result of the pledge of (or a Guarantee limited in recourse solely to) Equity Interests in such Unrestricted Subsidiary or joint venture held by Holdings or such Restricted Subsidiary to secure such Indebtedness and solely to the extent such Indebtedness constitutes Non-Recourse Debt.

(c)            For purposes of determining compliance with this Section 4.9, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Permitted Indebtedness described in Section 4.9(b)(1) through Section 4.9(b)(26) or is entitled to be incurred pursuant to the Coverage Ratio Exception, Holdings shall, in its sole discretion, classify such item of Indebtedness and may divide and/or classify such Indebtedness in more than one of the types of Indebtedness described (including in part in one category and in part in another category, including the Coverage Ratio Exception) and may later divide and/or reclassify any item of Indebtedness described in Section 4.9(b)(1) through Section 4.9(b)(26) or incurred pursuant to the Coverage Ratio Exception (provided that at the time of reclassification it meets the criteria in such category or categories; provided, further that any Indebtedness incurred under the Term Loan Credit Facility and the ABL Credit Facility as of the Issue Date shall be deemed to have been incurred under Section 4.9(b)(1) and may not be reclassified). In addition, for purposes of determining any particular amount of Indebtedness under this Section 4.9, (i) guarantees, Liens or letter of credit obligations supporting Indebtedness otherwise included in the determination of such particular amount shall not be included so long as incurred by a Person that could have incurred such Indebtedness; and (ii) the amount of Indebtedness issued at a price that is less than the principal amount thereof will be equal to the amount of the liability in respect thereof determined in accordance with GAAP.

(d)           The accrual of interest or Preferred Stock or Disqualified Equity Interests dividends or distributions, the accretion or amortization of accreted value or original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, the payment of dividends or distributions on Preferred Stock or Disqualified Equity Interests in the form of additional shares and increases in the amount of Indebtedness outstanding solely as a result of fluctuations in the exchange rate of currencies will not be deemed to be an incurrence of Indebtedness under this Section 4.9; provided, in each such case, that the amount thereof is included in Consolidated Interest Expense of Holdings as accrued to the extent required by the definition thereof.

(e)            For the purposes of determining compliance with any U.S. dollar-denominated restriction on the incurrence of Indebtedness denominated in a foreign currency, the U.S. dollar-equivalent principal amount of such Indebtedness incurred pursuant thereto shall be calculated based on the relevant currency exchange rate in effect on the earlier of the date that such Indebtedness was incurred, in the case of term Indebtedness, or first committed, in the case of revolving credit Indebtedness; provided that if such Indebtedness is incurred to refinance other Indebtedness denominated in a foreign 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 Indebtedness does not exceed the principal amount of such Indebtedness being refinanced, together with the amount of accrued and unpaid interest and any premium payable to the holders of such refinanced Indebtedness. Notwithstanding any other provision of this Section 4.9, the maximum amount of Indebtedness that Holdings or any Restricted Subsidiary may incur under this Section 4.9 will not be deemed to be exceeded solely as a result of fluctuations in the exchange rates of currencies. The principal amount of any Indebtedness incurred to refinance other Indebtedness, if incurred in a different currency from the Indebtedness being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such Indebtedness is denominated that is in effect on the date of such refinancing.

(f)            If at any time an Unrestricted Subsidiary becomes a Restricted Subsidiary, any Indebtedness of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary as of such date (and, if such Indebtedness is not permitted to be incurred as of such date under this Section 4.9, Holdings shall be in Default of this Section 4.9).

(g)            Holdings will not, and will not permit the Issuers or any Subsidiary Guarantor to, directly or indirectly, incur any Indebtedness (including Acquired Indebtedness) that is or purports to be by its terms (or by the terms of any agreement governing such Indebtedness) subordinated or junior in right of payment to any other Indebtedness of Holdings, the Issuers or such Subsidiary Guarantor, as the case may be, unless such Indebtedness (including Acquired Indebtedness) is expressly subordinated in right of payment to the Notes or such Subsidiary Guarantor’s Guarantee, as the case may be, to the same extent and in the same manner as such Indebtedness is subordinated to such other Indebtedness of Holdings, the Issuers or such Subsidiary Guarantor, as the case may be. For purposes of the foregoing, no Indebtedness will be deemed to be contractually subordinate or junior in right of payment to any other Indebtedness solely by virtue of (1) being unsecured or (2) its having a junior priority with respect to the same collateral.

Section 4.10.          Limitation on Asset Sales.

(a)

(1)            Holdings shall not, and shall not permit any of its Restricted Subsidiaries to, make any Asset Sale of Collateral unless:

(A)            Holdings or such Restricted Subsidiary, as the case may be, receives consideration (including by way of relief from, or by way of any other Person assuming sole responsibility for, any liabilities, contingent or otherwise) at least equal to the Fair Market Value (such Fair Market Value to be determined as of the date of contractually agreeing to such Asset Sale) of the Collateral subject to such Asset Sale;

(B)            at least 75.0% of the consideration from such Asset Sale received by Holdings or such Restricted Subsidiary, as the case may be, is in the form of (1) cash, (2) Cash Equivalents, (3) Replacement Assets of a type which would constitute (x) Pari Passu Priority Collateral in the case of an Asset Sale of Pari Passu Priority Collateral or (y) ABL Priority Collateral in the case of an Asset Sale of ABL Priority Collateral (which in both cases are thereupon with their acquisition added to the Collateral securing the Notes) or (4) any combination of the foregoing; and

(C)            to the extent that any consideration from such Asset Sales received by Holdings or such Restricted Subsidiary, as the case may be, constitutes securities or other assets that are of a type or class that constitute Collateral, such securities or other assets, including the assets of any Person that becomes a Guarantor as a result of such transaction, are concurrently with their acquisition added to the Collateral securing the Notes (as Pari Passu Priority Collateral or ABL Priority Collateral, as applicable) in the manner provided for in this Indenture or any of the Security Documents.

In the case of any Asset Sale of Collateral pursuant to a condemnation, seizure, appropriation or similar taking, including by deed in lieu of condemnation, or any actual or constructive total loss or an agreed or compromised total loss, such Asset Sale shall not be required to satisfy the requirements of Section 4.10(a)(1)(A) or Section 4.10(a)(1)(B).

(2)            If at any time any non-cash consideration received by Holdings or any Restricted Subsidiary, as the case may be, in connection with any Asset Sale of Collateral is repaid or converted into or sold or otherwise disposed of for cash (other than interest received with respect to any such non-cash consideration), then the date of such repayment, conversion or disposition shall be deemed to constitute the date of an Asset Sale hereunder and the Net Available Proceeds thereof shall be applied in accordance with this Section 4.10.

(3)            Subject to the terms of the Intercreditor Agreements, within 365 days of the date of such Asset Sale of Collateral, the Issuers or any Guarantor, as the case may be, may (A) use any Net Available Proceeds received from Asset Sales of ABL Priority Collateral to repay, redeem, retire, defease, replace, refinance or repurchase any ABL Obligations, (B) use any Net Available Proceeds received from Asset Sales of Pari Passu Priority Collateral to repay, redeem, retire, defease, replace, refinance or repurchase Pari Passu Secured Obligations; provided that if Holdings or a Restricted Subsidiary repays, redeems or repurchases any Pari Passu Secured Obligations other than the Notes, Holdings or such Restricted Subsidiary must equally and ratably redeem or repurchase (or offer to repurchase) the Notes, at the Issuers’ option, as provided for under Section 3.7, through open market purchases (to the extent such purchases are at a purchase price at or above 100% of the principal amount thereof plus accrued and unpaid interest, if any) or by making an offer to all Holders to purchase their Notes at 100% of the principal amount thereof, plus accrued and unpaid interest, if any (and such offer shall be deemed for purposes of this covenant to be a use of proceeds from an Asset Sale equal to the aggregate amount of Net Available Proceeds offered to the Holders, whether or not the offer is accepted by any or all Holders) or (C) invest any Net Available Proceeds received from Asset Sales of Collateral in Replacement Assets that would constitute (x) Pari Passu Priority Collateral in the case of an Asset Sale of Pari Passu Priority Collateral and (y) ABL Priority Collateral or Pari Passu Priority Collateral in the case of an Asset Sale of ABL Priority Collateral, which Replacement Assets are thereupon with their acquisition added to the Collateral securing the Notes.

(4)            Any Net Available Proceeds from Asset Sales of Collateral that are not applied or invested as provided in this Section 4.10(a) will be deemed to constitute “Excess Collateral Proceeds.” When the aggregate amount of Excess Collateral Proceeds exceeds $30.0 million, the Issuers will be required to make an offer (a “Collateral Disposition Offer”) to all Holders to purchase the maximum principal amount of the Notes (on a pro rata basis, subject to adjustments to maintain the authorized denomination of the Notes) and, if required by the terms of any other Pari Passu Notes Lien Indebtedness, to the holders of such Pari Passu Notes Lien Indebtedness(on a pro rata basis), to which the Collateral Disposition Offer applies that may be purchased out of the Excess Collateral Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and such other Pari Passu Notes Lien Indebtedness, plus accrued and unpaid interest, if any, to, but excluding, the date of purchase, in accordance with the procedures set forth in this Indenture in a minimum principal amount of $2,000 or an integral multiple of $1,000 in excess thereof with respect to the Notes. To the extent that the aggregate amount of Notes so validly tendered and not properly withdrawn pursuant to a Collateral Disposition Offer (together with, if required by the terms of any other Pari Passu Notes Lien Indebtedness, the amount of Pari Passu Notes Lien Indebtedness tendered pursuant to any similar requirement), is less than the Excess Collateral Proceeds, the Issuers may use any remaining Excess Collateral Proceeds for general corporate purposes, subject to the other covenants contained in this Indenture. If the aggregate principal amount of Notes surrendered by Holders and, if required by the holders of Pari Passu Notes Lien Indebtedness, holders of any Pari Passu Notes Lien Indebtedness exceeds the amount of Excess Collateral Proceeds, the Notes and the Pari Passu Notes Lien Indebtedness to be purchased shall be selected by the Issuers on a pro rata basis (subject to adjustments to maintain the authorized denomination of the Notes) on the basis of the aggregate principal amount of tendered Notes and Pari Passu Notes Lien Indebtedness. Upon completion of such Collateral Disposition Offer, the amount of Excess Collateral Proceeds shall be reset at zero. The Issuers may make a Collateral Disposition Offer if Excess Collateral Proceeds are less than $30.0 million and prior to 365 days after an Asset Sale of Collateral. Notwithstanding the foregoing, to the extent that any Net Available Proceeds or Excess Collateral Proceeds are required to be applied to prepay Indebtedness under the ABL Credit Facility or other Pari Passu ABL Lien Indebtedness, the Issuers may make a prepayment with respect to such Indebtedness out of such Net Available Proceeds or Excess Collateral Proceeds, at a price in cash in an amount equal to 100% of the principal amount of such Indebtedness, plus accrued and unpaid interest, if any, to, but excluding, the date of prepayment (and correspondingly reduce commitments with respect to the ABL Credit Facility or other Pari Passu ABL Lien Indebtedness if such repayment is made with the proceeds of Pari Passu Priority Collateral).

(5)            Pending the final application of any such Net Available Proceeds in accordance with Section 4.10(a)(3) and Section 4.10(a)(4), Holdings and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Proceeds in any manner not prohibited by this Indenture.

(b)

(1)            Holdings shall not, and shall not permit any Restricted Subsidiary to, make any Asset Sale (other than Asset Sales of Collateral, which shall be treated in the manner set forth in Section 4.10(a)) unless:

(A)            Holdings or such Restricted Subsidiary, as the case may be, receives consideration (including by way of relief from, or by way of any other Person assuming sole responsibility for, any liabilities, contingent or otherwise) at least equal to the Fair Market Value (such Fair Market Value to be determined as of the date of contractually agreeing to such Asset Sale) of the Equity Interest or assets subject to such Asset Sale;

(B)            either (x) at least 75.0% of the consideration from such Asset Sale received by Holdings or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents or a combination thereof or (y) the Fair Market Value of the aggregate of all non-cash consideration for all Asset Sales since the Issue Date would not exceed 5.0% of the Consolidated Total Assets of Holdings after giving effect to such Asset Sale; provided that

(i)            in the case of any Asset Sale pursuant to a condemnation, seizure, appropriation or similar taking, including by deed in lieu of condemnation, or any actual or constructive total loss or an agreed or compromised total loss, such Asset Sale shall not be required to satisfy the requirements of Section 4.10(b)(1)(A) or this Section 4.10(b)(1)(B);

(ii)            if at any time any non-cash consideration received by Holdings or any Restricted Subsidiary, as the case may be, in connection with any Asset Sale is repaid or converted into or sold or otherwise disposed of for cash (other than interest received with respect to any such non-cash consideration), then the date of such repayment, conversion or disposition shall be deemed to constitute the date of an Asset Sale hereunder and the Net Available Proceeds thereof shall be applied in accordance with this Section 4.10; and

(iii)          for purposes of this Section 4.10(b)(1)(B), each of the following will be deemed to be cash: (a) any liabilities, as shown on Holdings’ most recent consolidated balance sheet, of Holdings or any Restricted Subsidiary to the extent secured by a Lien permitted to have Pari Passu Lien Priority on any Collateral (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Guarantee) that are contributed, exchange or delivered to Holdings or the Issuers as consideration for or in connection with such Asset Sale, or that are assumed or otherwise forgiven by the transferee of any such assets pursuant to a novation, indemnity or other agreement that releases Holdings or such Restricted Subsidiary from further liability; (b) any securities, notes or other obligations received by Holdings or any Restricted Subsidiary from such transferee that are, within 90 days of the Asset Sale, converted by Holdings or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion; or (c) any Capital Stock or assets of the kind referred to in Section 4.10(b)(1)(C)(ii); and

(C)            within 365 days following such Asset Sale, an amount equal to 100% of the Net Available Proceeds from such Asset Sale is applied by Holdings or such Restricted Subsidiary, as the case may be, as follows (it being understood that actions under Section 4.10(b)(1)(C)(ii), Section 4.10(b)(1)(C)(iii) or Section 4.10(b)(1)(C)(iv) may occur prior to actions under Section 4.10(b)(1)(C)(i) during such 365-day period):

(i)            to the extent Holdings or such Restricted Subsidiary elects (or is required by the terms of any Indebtedness) to prepay, repay or purchase Indebtedness (other than Disqualified Equity Interests or Subordinated Indebtedness) (in each case other than Indebtedness owed to Holdings or an Affiliate of Holdings, unless such Affiliate only sells its pro rata portion of any Notes acquired by Holdings in any open market purchases or pursuant to any offer to purchase Notes) within 365 days after the date of such Asset Sale;

(ii)            to the extent Holdings or such Restricted Subsidiary elects to acquire all or substantially all of the properties and assets of a Person in a Permitted Business, to acquire any capital stock of a Person in a Permitted Business if said Person becomes a Restricted Subsidiary, to acquire other assets that are used or useful in a Permitted Business, to make an Investment in assets that will be used or useful in a Permitted Business or to reinvest in assets of or usable in a Permitted Business (including equity securities of a Permitted Business) (including by means of an investment in such assets by a Restricted Subsidiary with Net Available Proceeds received by Holdings or another Restricted Subsidiary) within 365 days from the date of such Asset Sale;

(iii)          to the extent Holdings or such Restricted Subsidiary elects to make an investment in a capital expenditure used or useful in a Permitted Business within 365 days after the date of such Asset Sale; and

(iv)          to make an offer to purchase the Notes and any Pari Passu Indebtedness with similar asset sale provisions, pro rata at 100% of the tendered principal amount thereof (or 100% of the accreted value of such other Pari Passu Indebtedness so tendered, if such Pari Passu Indebtedness was offered at a discount) plus accrued and unpaid interest, if any, to, but excluding, the purchase date;

provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to Section 4.10(b)(1)(C)(i) or Section 4.10(b)(1)(C)(iv), Holdings or such Restricted Subsidiary will retire such Indebtedness and will cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased (other than Indebtedness under an asset-based debt facility, so long as the asset sold in such Asset Sale constituted part of the borrowing base of such facility prior to such Asset Sale); provided, further, that pending the final application of any such Net Available Proceeds in accordance with this Section 4.10(b)(1)(C), Holdings and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Proceeds in any manner not prohibited by this Indenture.

(2)            In the case of Section 4.10(a)(3) or under Section 4.10(b)(1)(C)(ii) or under Section 4.10(b)(1)(C)(iii), if, during the 365-day period following the date of the Asset Sale, Holdings or such Restricted Subsidiary enters into a written agreement committing it to apply such Net Available Proceeds in accordance with the requirements of Section 4.10(a)(3) or Section 4.10(b)(1)(C)(ii) after such 365-day period, then such 365-day period will be extended with respect to the amount of Net Available Proceeds so committed for a period not to exceed 180 days, until such Net Available Proceeds are required to be applied in accordance with such agreement (or, if earlier, until termination of such agreement) or has been applied toward such construction, as the case may be.

(c)            In the event of an Asset Sale that requires the purchase of Notes or in which the Issuers elect to purchase Notes pursuant to Section 4.10(b)(1)(C)(iv) above, the Issuers will be required to apply such Excess Proceeds to the repayment of the Notes and any other Pari Passu Indebtedness outstanding with similar provisions requiring the Issuers to make an offer to purchase such Indebtedness with the proceeds from any Asset Sale as follows:

(1)            the Issuers will make an offer to purchase (a “Net Proceeds Offer”) within ten Business Days of such time from all Holders in accordance with the procedures set forth in this Indenture in the maximum principal amount of Notes that may be purchased out of an amount (the “Note Amount”) equal to the product of such Excess Proceeds multiplied by a fraction, the numerator of which is the outstanding principal amount of the Notes and the denominator of which is the sum of the outstanding principal amount of the Notes and such Pari Passu Indebtedness; and

(2)            to the extent required by such Pari Passu Indebtedness to permanently reduce the principal amount of such Pari Passu Indebtedness, the Issuers will make an offer to purchase or otherwise repurchase or redeem such Pari Passu Indebtedness (a “Pari Passu Offer”) in an amount equal to the excess of the Excess Proceeds over the Note Amount at a purchase price of 100% of their principal amount (or 100% of the accreted value of such Pari Passu Indebtedness, if such Pari Passu Indebtedness was offered at a discount) plus accrued and unpaid interest, if any, to, but excluding, to the purchase date in accordance with the procedures (including prorating in the event of oversubscription) set forth in this Indenture with respect to the Net Proceeds Offer and in the documentation governing such Pari Passu Indebtedness with respect to the Pari Passu Offer. If the aggregate purchase price of the Notes and Pari Passu Indebtedness tendered pursuant to the Net Proceeds Offer and Pari Passu Offer is less than the Excess Proceeds, the remaining Excess Proceeds will be available to the Issuers for use in accordance with any corporate purpose to the extent consistent with any other applicable provision of this Indenture. The Issuers shall only be required to make a Net Proceeds Offer for Notes pursuant to this Section 4.10 if the Net Available Proceeds available therefor (after application of the proceeds as provided in clauses Section 4.10(b)(1)(C)(i), Section 4.10(b)(1)(C)(ii) and Section 4.10(b)(1)(C)(iii)) (the “Excess Proceeds”) exceeds $30.0 million (and any lesser amounts shall be carried forward for purposes of determining whether a Net Proceeds Offer is required with respect to the Net Available Proceeds from any subsequent Asset Sale). Upon completion of any such Net Proceeds Offer, the amount of Excess Proceeds shall be reset at zero. The Issuers may make a Net Proceeds Offer if Excess Proceeds are less than $30.0 million and prior to 365 days after an Asset Sale.

(d)           The Collateral Disposition Offer or Net Proceeds 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 “Net Proceeds Offer Period”). No later than five Business Days after the termination of the Net Proceeds Offer Period (the “Net Proceeds Purchase Date”), the Issuers will purchase the principal amount of Notes, Pari Passu Notes Lien Indebtedness and Pari Passu Indebtedness, as applicable, required to be purchased pursuant to this Section 4.10 (the “Net Proceeds Offer Amount”) or, if less than the Net Proceeds Offer Amount has been so validly tendered and not properly withdrawn, all Notes, Pari Passu Notes Lien Indebtedness and Pari Passu Indebtedness, if applicable, validly tendered in response to the Collateral Disposition Offer or Net Proceeds Offer, as applicable.

(e)            If the Net Proceeds Purchase Date is on or after an interest record date and on or before the related interest payment date, then with respect to Holders who have tendered their Notes for purchase pursuant to a Collateral Disposition Offer or Net Proceeds Offer, any accrued and unpaid interest will be paid on such Net Proceeds Purchase Date to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest will be payable to Holders with respect to Notes tendered pursuant to the Collateral Disposition Offer or Net Proceeds Offer.

(f)            On or before the Net Proceeds Purchase Date, the Issuers will, to the extent lawful, accept for payment, on a pro rata basis (subject to adjustments to maintain the authorized denomination of the Notes) to the extent necessary, the Net Proceeds Offer Amount of Notes, Pari Passu Notes Lien Indebtedness and Pari Passu Indebtedness, as applicable, or portions of Notes, Pari Passu Notes Lien Indebtedness and Pari Passu Indebtedness, as applicable, so validly tendered and not properly withdrawn pursuant to the Collateral Disposition Offer or Net Proceeds Offer, or if less than the Net Proceeds Offer Amount has been validly tendered and not properly withdrawn, all Notes, Pari Passu Notes Lien Indebtedness and Pari Passu Indebtedness, as applicable, so validly tendered and not properly withdrawn, in a minimum principal amount of $2,000 or an integral multiple of $1,000 in excess thereof in the case of the Notes. The Issuers or the applicable tender agent, as the case may be, will promptly (but in any case not later than five Business Days after termination of the Net Proceeds Offer Period) mail or deliver to each tendering Holder of Notes or holder or lender of Pari Passu Notes Lien Indebtedness or Pari Passu Indebtedness, as the case may be, an amount equal to the purchase price of the Notes, Pari Passu Notes Lien Indebtedness or Pari Passu Indebtedness so validly tendered and not properly withdrawn by such holder or lender, as the case may be, and accepted by the Issuers for purchase, and, in the case of Notes in non-global form, the Issuers will promptly issue a new Note, and the Trustee, upon delivery of an authentication order from the Issuers, will authenticate and mail or deliver 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 minimum 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 Issuers to the Holder thereof. The Issuers will publicly announce the results of the Collateral Disposition Offer or Net Proceeds Offer, as the case may be, on the Net Proceeds Purchase Date.

(g)            For purposes of Section 4.10(a)(1)(B) and Section 4.10(b)(1)(B) and for no other purpose, the following shall be deemed to be cash:

(1)            the amount (without duplication) of any liabilities (as shown on Holdings’ or such Restricted Subsidiary’s most recent balance sheet) (other than Subordinated Indebtedness or intercompany Indebtedness) of Holdings or such Restricted Subsidiary that is expressly assumed by the transferee of any such assets pursuant to a written agreement that releases Holdings or such Restricted Subsidiary from further liability therefor;

(2)            the amount of any securities, notes or other obligations received from such transferee that are within 180 days after such Asset Sale converted by Holdings or such Restricted Subsidiary into cash (to the extent of the cash actually so received);

(3)            any assets or Equity Interests of the kind referred to in Section 4.10(b)(1)(C)(ii) and Section 4.10(b)(1)(C)(iii);

(4)            accounts receivable of a business retained by Holdings or any Restricted Subsidiary, as the case may be, following the sale of such business; provided that such accounts receivable (i) are not past due more than 60 days and (ii) do not have a payment date greater than 90 days from the date of the invoices creating such accounts receivable; and

(5)            any Designated Non-cash Consideration received by Holdings or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this Section 4.10(g)(5), not to exceed an amount equal to the greater of (i) $100.0 million and (ii) 5.0% of Holdings’ Consolidated Total Assets (determined at the time of 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.

(h)            Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of Holdings and its Restricted Subsidiaries, taken as a whole, will be governed by Section 4.13 and/or Section 5.1 and not by this Section 4.10.

(i)             The Issuers shall reasonably determine in their sole discretion in good faith whether, and to what extent, the Net Available Proceeds of an Asset Sale is attributable to Pari Passu Priority Collateral or ABL Priority Collateral or is invested in Pari Passu Priority Collateral or ABL Priority Collateral, taking into account all relevant factors. In the event that ABL Priority Collateral and Pari Passu Priority Collateral (and/or other assets not constituting Collateral) is disposed of in a single transaction or series of related transactions in which the aggregate sales price or purchase price is not allocated between the ABL Priority Collateral and Pari Passu Priority Collateral (and/or other assets not constituting Collateral), including in connection with the sale of a Guarantor which owns assets constituting both ABL Priority Collateral and Pari Passu Priority Collateral (and/or other assets not constituting Collateral), then, solely for purposes of this Indenture, the portion of the aggregate sales price deemed to be Net Available Proceeds from the ABL Priority Collateral, on the one hand, and Pari Passu Priority Collateral, on the other hand (and/or proceeds of other assets not constituting Collateral), or the portion of the purchase price deemed to be invested in ABL Priority Collateral or Pari Passu Priority Collateral, as the case may be (and/or other assets not constituting Collateral), shall be reasonably allocated by the Issuers in their sole discretion in good faith, taking into account all relevant factors.

(j)            The Issuers shall comply with all applicable securities laws and regulations in the United States, including, without limitation, the requirements of Rule 14e-1 under the Exchange Act and any other applicable laws and regulations in connection with the purchase of Notes pursuant to a Collateral Disposition Offer or a Net Proceeds Offer. To the extent that the provisions of any applicable securities laws or regulations conflict with this Section 4.10, the Issuers shall 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 compliance.

Section 4.11.          Limitation on Transactions with Affiliates.

(a)            Holdings shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, in one transaction or a series of related transactions, sell, lease, transfer or otherwise dispose of any of its assets to, or purchase any assets from, or enter into any contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of any Affiliate (an “Affiliate Transaction”) involving aggregate payments or consideration to or from Holdings or a Restricted Subsidiary in excess of $5.0 million, unless:

(1)            the terms of such Affiliate Transaction or series of related Affiliate Transactions are not materially less favorable to Holdings or such Restricted Subsidiary, as the case may be, than those that could reasonably be expected to have been obtained in a comparable transaction at the time of such transaction in arm’s length dealings with a Person who is not such an Affiliate, or if in the good faith judgment of Holdings’ Board of Directors, no comparable transaction is available with which to compare such Affiliate Transaction or series of related Affiliate Transactions, or are otherwise fair to Holdings or such Restricted Subsidiary from a financial point of view; and

(2)            the Issuers deliver to the Trustee, (a) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate value in excess of $20.0 million, an Officer’s Certificate certifying that such Affiliate Transaction or series of related Affiliate Transactions complies with Section 4.11(a)(1) and (b) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate value in excess of $40.0 million, an Officer’s Certificate certifying that such Affiliate Transaction or series of related Affiliate Transactions complies with Section 4.11(a)(1) and which sets forth and authenticates a resolution that has been approved by a majority of the disinterested members of the Board of Directors of Holdings.

(b)            The foregoing restrictions shall not apply to:

(1)            transactions to the extent between or among (a) Holdings and one or more Restricted Subsidiaries or a Person that becomes a Restricted Subsidiary as a result of such transaction or (b) Restricted Subsidiaries;

(2)            employment agreements, equity awards, compensation plans, deferred compensation plans, severance agreements and arrangements, director, trustee, officer and employee compensation (including bonuses) and other benefits (including pursuant to any employment agreement or any retirement, health, stock option or other benefit plan), payments of fees, reasonable out-of-pocket costs and indemnities to employees, officers, directors and consultants of Holdings or any of its Restricted Subsidiaries and indemnification arrangements, including any other compensation plans, agreements or arrangements, benefit plans, retirement plans, savings plans, vacation plans and directors and officers insurance arrangements entered into by Holdings or any Restricted Subsidiary in the ordinary course of business and payments pursuant thereto, in each case, as determined in good faith by Holdings’ Board of Directors or senior management;

(3)            any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, equity purchase agreements, stock options and stock ownership, in each case, as determined in good faith by Holdings’ Board of Directors or senior management;

(4)            Permitted Investments or Restricted Payments which are made in accordance with the covenant described under Section 4.7;

(5)            any agreement in effect on the Issue Date (and performance thereunder) or as thereafter amended or replaced in any manner that, taken as a whole, is not materially less advantageous to Holdings than such agreement as it was in effect on the Issue Date;

(6)            any transaction with a Person (other than an Unrestricted Subsidiary of Holdings) which would constitute an Affiliate of Holdings solely because Holdings or a Restricted Subsidiary owns an equity interest in or otherwise controls such Person;

(7)            loans or advances to officers, directors, consultants and employees of Holdings or its Restricted Subsidiaries that are Permitted Investments;

(8)            transactions with customers, clients, suppliers or purchasers or sellers of goods or services, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture; provided that in the reasonable determination of the Board of Directors or the senior management of Holdings, such transactions are on terms not materially less favorable to Holdings or the relevant Restricted Subsidiary than those that could reasonably be expected to be obtained in a comparable transaction at such time on an arm’s-length basis from a Person that is not an Affiliate of Holdings;

(9)            transactions with Restricted Subsidiaries for the purchase or sale of goods, products, parts and services entered into in the ordinary course of business;

(10)          the issuance, sale or transfer of any Qualified Equity Interests of Holdings and the granting of registration and other customary rights in connection therewith to, or the receipt of capital contributions from, Affiliates of Holdings;

(11)          any transaction where the only consideration paid by Holdings or the relevant Restricted Subsidiary is Qualified Equity Interests of Holdings;

(12)          any purchase by any direct or indirect parent (other than Holdings) of the Equity Interests of Holdings and the purchase by Holdings of Equity Interests in any Restricted Subsidiary;

(13)          transactions between Holdings or any Restricted Subsidiary and any Person, a director of which is also a director of Holdings or any direct or indirect parent company of Holdings, and such director is the sole cause for such Person to be deemed an Affiliate of Holdings or any Restricted Subsidiary; provided, however, that such director shall abstain from voting as a director of Holdings or such direct or indirect parent company, as the case may be, on any matter involving such other Person;

(14)          the entering into of a tax sharing agreement, or payments pursuant thereto, between Holdings and/or one or more Subsidiaries, on the one hand, and any other applicable Person;

(15)          transactions with respect to which Holdings or a Restricted Subsidiary delivers to the Trustee a letter from an independent investment bank, appraisal firm, valuation firm or accounting firm stating that the transaction is fair to Holdings or such Restricted Subsidiary, as the case may be, from a financial point of view or otherwise complies with the standard in Section 4.11(a)(1);

(16)          pledges by Holdings or a Restricted Subsidiary of Equity Interests of an Unrestricted Subsidiary for the benefit of lenders or other creditors of the Unrestricted Subsidiary;

(17)          transactions with customers, clients, suppliers or purchasers or sellers of goods or services, or lessors or lessees of property, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture which are, in the aggregate (taking into account all the costs and benefits associated with such transactions), not materially less favorable to Holdings and the Restricted Subsidiaries than those that would have been obtained in a comparable transaction by Holdings or such Restricted Subsidiary with an unrelated person, as determined in good faith by Holdings’ Board of Directors or senior management, or are on terms at least as favorable to Holdings or the relevant Restricted Subsidiary than those that could reasonably be expected to be obtained in a comparable transaction at such time on an arm’s-length basis from a Person that is not an Affiliate of Holdings;

(18)            payments or loans (or cancellation of loans) to employees or consultants that are: (a) approved by a majority of the disinterested directors of Holdings or the Issuers in good faith; (b) made in compliance with applicable law; and (c) otherwise permitted by this Indenture;

(19)          the existence of, or the performance by any of Holdings, the Issuers or a Restricted Subsidiary of its obligations under the terms of, any customary registration rights agreement to which such entity is a party or becomes a party in the future;

(20)          intercompany transactions undertaken in good faith (as certified by an Officer of Holdings) for the purpose of improving the consolidated tax efficiency of Holdings and the Restricted Subsidiaries as permitted by this Indenture;

(21)          Investments by Affiliates in securities of Holdings or any Restricted Subsidiary (so long as the Investment is being generally offered to other investors on the same or more favorable terms), any participation in a tender or exchange offer for securities or debt instruments issued by Holdings or any of its Restricted Subsidiaries that are conducted on arm’s-length terms and provide for the same price or exchange, as the case may be, to all holders accepting such tender or exchange offer, and payments to an Affiliate in respect of notes, capital stock or Indebtedness of Holdings or any Restricted Subsidiary on the same basis as concurrent payments made or offered in respect thereof to non-Affiliates;

(22)          central services (including, without limitation, management information systems, pension and profit sharing plans and human resources) provided by Holdings or any Restricted Subsidiary to any Affiliates;

(23)          Qualified Receivables Financings; and

(24)          dividends and distributions to Holdings and the Restricted Subsidiaries by any Unrestricted Subsidiary or joint venture.

Section 4.12.          Limitation on Liens.

(a)            Holdings, the Issuers and each other Guarantor shall not, and Holdings shall not permit any Restricted Subsidiary to, directly or indirectly, create, incur, assume or permit or suffer to exist any Lien of any kind (other than Permitted Liens) upon any of their property or assets (including Equity Interests of any Subsidiary), whether owned at the Issue Date or thereafter acquired, which Lien secures Indebtedness.

(b)            If Holdings, the Issuers or any other Guarantor, directly or indirectly, shall create, incur, assume or permit or suffer to exist any Lien of any kind upon any of their property or assets (including Equity Interests of any Subsidiary), whether owned at the Issue Date or thereafter acquired, (x) in the case of Liens securing any of the ABL Obligations, Pari Passu ABL Lien Indebtedness or Pari Passu Notes Lien Indebtedness (including the Term Loan Obligations), Holdings, the Issuers or such Guarantor, as the case may be, shall, contemporaneously with the incurrence of such Lien, grant at least a first- or second-priority Lien consistent with the relative Lien priority set forth in the Intercreditor Agreements subject to Permitted Liens, upon such property or asset as security for the Notes and the Guarantees pursuant to the Intercreditor Agreements and any other applicable intercreditor agreement, and (y) in the case of Liens securing Junior Lien Obligations, Holdings, the Issuers or such Guarantor, as the case may be, shall, contemporaneously with the incurrence of such Lien, grant a priority Lien relative to such Junior Lien Obligations subject to Permitted Liens, upon such property or asset as security for the Notes and the Guarantees pursuant to the Junior Lien Intercreditor Agreement or other applicable intercreditor agreement.

(c)            Any such Lien granted to secure the Notes pursuant to Section 4.12(b) on property or assets (which property or assets would not otherwise constitute Collateral other than as required by Section 4.12(b)) shall be automatically and unconditionally released and discharged in all respects upon (i) the release and discharge of the other Lien to which it relates (except a release and discharge upon payment of the obligation secured by such Lien during the pendency of any Default or Event of Default under this Indenture, in which case such Liens shall only be discharged and released upon payment of the Notes or cessation of such Default or Event of Default) or (ii) in the case of any such Lien in favor of any Guarantee, upon the termination and discharge of such Guarantee in accordance with the terms of this Indenture.

Section 4.13.          Offer to Purchase upon Change of Control.

(a)            Upon the occurrence of any Change of Control, unless the Issuers have issued a notice of redemption with respect to all of the Notes previously or concurrently as described in Section 3.7, each Holder will have the right, except as provided below, to require that the Issuers purchase all or any portion (equal to a minimum of $2,000 or an integral multiple of $1,000 in excess thereof) of that Holder’s Notes for a cash price (the “Change of Control Purchase Price”) equal to 101.0% of the principal amount of the Notes to be purchased, plus accrued and unpaid interest thereon, if any, to, but excluding, the date of purchase.

(b)            Not later than 30 days following any Change of Control, the Issuers will deliver, or cause to be delivered, to the Holders, with a copy to the Trustee, a notice:

(1)            describing the transaction or transactions that constitute the Change of Control;

(2)            offering to purchase, pursuant to the procedures required by this Indenture and described in the notice (a “Change of Control Offer”), on a date specified in the notice, which shall be a Business Day not earlier than 30 days, nor later than 60 days, from the date the notice is delivered (the “Change of Control Payment Date”), and for the Change of Control Purchase Price, all Notes properly tendered by such Holder pursuant to such Change of Control Offer prior to 5:00 p.m. New York time on the second Business Day preceding the Change of Control Payment Date; and

(3)            describing the procedures, as determined by the Issuers, consistent with this Indenture, that Holders must follow to accept the Change of Control Offer.

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

(1)            deposit with the applicable tender agent an amount equal to the Change of Control Purchase Price in respect of all Notes or portions of Notes properly tendered;

(2)            accept for payment all Notes or portions of Notes (of a minimum of $2,000 or integral multiples of $1,000 in excess thereof) properly tendered pursuant to the Change of Control Offer; and

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

(d)            The applicable tender agent will promptly deliver to each Holder who has so tendered Notes the Change of Control Purchase Price for such Notes, and, in the case of non-global forms of Notes, the Trustee will promptly authenticate and mail to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes so tendered, if any; provided that each such new Note will be in a minimum principal amount of $2,000 or integral multiples of $1,000 in excess thereof.

(e)            If the Change of Control Payment Date is on or after an interest record date and on or before the related interest payment date, then with respect to Holders who have tendered their Notes for purchase pursuant to the Change of Control Offer, any accrued and unpaid interest, if any, to, but excluding, the Change of Control Payment Date will be paid on the Change of Control Payment Date to the Person in whose name a Note is registered at the close of business on such record date.

(f)            A Change of Control Offer will be required to remain open for at least 20 Business Days or for such longer period as is required by applicable law. The Issuers will publicly announce the results of the Change of Control Offer on or as soon as practicable after the date of purchase.

(g)            The Issuers will not be required to make a Change of Control Offer upon a Change of Control if (i) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuers and purchases all Notes properly tendered and not withdrawn under such Change of Control Offer, (ii) a notice of redemption with respect to all outstanding Notes has been given pursuant to this Indenture as described in Section 3.7 unless or until there is a default in payment of the applicable redemption price or (iii) in connection with or in contemplation of any publicly announced Change of Control, the Issuers have made an offer to purchase (such offer to purchase described in this Section 4.13(g)(iii), an “Alternate Offer”) any and all Notes validly tendered at a cash price equal to or higher than the Change of Control Purchase Price and has purchased all Notes properly tendered in accordance with the terms of the Alternate Offer. The provisions under this Indenture relating to the Issuers’ obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of the Holders of a majority in aggregate principal amount of the Notes.

(h)            If Holders of not less than 90.0% in aggregate principal amount of the outstanding Notes validly tender and do not withdraw such Notes in a Change of Control Offer or Alternate Offer and the Issuers, or any third party making a Change of Control Offer in lieu of the Issuers as described above, purchase all of the Notes validly tendered and not withdrawn by such Holders, the Issuers will have the right, upon not less than 30 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer or Alternate Offer, as applicable, to redeem all Notes that remain outstanding following such purchase at a redemption price in cash equal to the applicable Change of Control Purchase Price or Alternate Offer price, as applicable, plus, to the extent not included in the Change of Control Purchase Price or Alternate Offer price, as applicable, accrued and unpaid interest, if any, to, but excluding, the date of redemption.

(i)            The Issuers will comply with all applicable securities legislation in the United States, including, without limitation, the requirements of Rule 14e-1 under the Exchange Act, and any other applicable laws and regulations in connection with the purchase of Notes pursuant to a Change of Control Offer. To the extent that the provisions of any applicable securities laws or regulations conflict with this Section 4.13, the Issuers shall comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 4.13 by virtue of such compliance.

(j)            The provisions in this Section 4.13 may be waived, modified or terminated with the written consent of the Holders of a majority in principal amount of the Notes then outstanding.

(k)            Notwithstanding anything to the contrary contained herein, a Change of Control Offer or Alternate Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer or Alternate Offer. The closing date of any such Change of Control Offer made in advance of a Change of Control may be changed to conform to the actual closing date of the Change of Control, whether or not later than 60 days from the date the Change of Control Offer notice is delivered as described above.

Section 4.14.          Corporate Existence. Subject to Article V, Holdings and each Issuer shall do or cause to be done all things necessary to preserve and keep in full force and effect:

(1)            its corporate existence, and the corporate, partnership or other existence of each of the Guarantors, in accordance with the respective organizational documents (as the same may be amended from time to time) of Holdings, such Issuer or any such Guarantor; and

(2)            the rights (charter and statutory), licenses and franchises of Holdings, such Issuer and the Guarantors; provided, however, that Holdings shall not be required to preserve any such right, license or franchise, or the corporate, partnership or other existence of any of the Guarantors, if the Board of Directors shall determine that the preservation thereof is no longer desirable in the conduct of the business of Holdings, the Issuers and the Guarantors, taken as a whole, and that the loss thereof is not adverse in any material respect to the Holders of the Notes.

Section 4.15.          Additional Guarantees.

(a)            If any Restricted Subsidiary of Holdings (other than the Issuers, any Subsidiary Guarantor (including the Post-Closing Guarantors) or any Excluded Subsidiary) shall guarantee any Indebtedness in excess of $5.0 million in aggregate principal amount of the Issuers or any Guarantor (including Holdings) under any Debt Facility (including the Term Loan Credit Facility and the ABL Credit Facility) after the Issue Date, subject to the Guaranty and Security Principles, then Holdings shall, within 20 Business Days thereof, cause such Restricted Subsidiary to execute and deliver to the Trustee a supplemental indenture substantially in the form of Exhibit C attached hereto, pursuant to which such Restricted Subsidiary shall become a Guarantor with respect to the Notes, upon the terms and subject to the release provisions and other limitations described under Article XI. Any Guarantee that is required pursuant to this Section 4.15 will be automatically released upon the release of the applicable Restricted Subsidiary from its liability with respect to all Indebtedness of the Issuers and the Guarantors.

(b)            Each Restricted Subsidiary that becomes a Guarantor on or after the Issue Date shall, also within 20 Business Days thereof, become a party to the applicable Security Documents, the Intercreditor Agreements and, to the extent required by this Indenture, shall as promptly as practicable execute and deliver such security instruments, financing statements or analogous filings, certificates, Officer’s Certificates and Opinions of Counsel (to the extent, and substantially in the form, delivered on the Issue Date) as may be necessary to vest in the Notes Collateral Agent a perfected first- or second-priority Lien, as the case may be (subject to Permitted Liens), in properties and assets that constitute Collateral as security for the Notes or the Guarantees and as may be necessary to have such properties or assets added to the applicable Collateral as required under the Security Documents and this Indenture, and thereupon all provisions of this Indenture relating to the Collateral (including, without limitation, those set forth in Article X) shall be deemed to relate to such properties and assets to the same extent and with the same force and effect.

(c)            Notwithstanding the foregoing, a Foreign Subsidiary is not required to become a Guarantor hereunder if the accession of such Subsidiary as a Guarantor could reasonably be expected (in good faith by Holdings but in its sole discretion) to result in material adverse tax consequences to Holdings, the Issuers and their Restricted Subsidiaries and so long as the Holders’ ability to receive payment in full with respect to the Obligations under this Indenture and the Notes will not be impaired (it being understood that the materiality of such adverse tax consequences of guaranteeing the Notes by such Foreign Subsidiary shall be analyzed with respect to the incremental tax burden of the Guarantee of the Notes and not the initial Guarantee of Indebtedness by such Foreign Subsidiary).

Section 4.16.     Limitation on Designation of Unrestricted Subsidiaries. (a)  The Board of Directors of Holdings may designate any Subsidiary (with the exception of the Issuers, but including any newly formed or newly acquired Subsidiary or a Person becoming a Subsidiary through merger, amalgamation or consolidation or Investment therein) of Holdings as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:

(1)       no Default or Event of Default shall have occurred and be continuing at the time of or after giving effect to such Designation; and

(2)       Holdings would be permitted to make, at the time of such Designation, (a) a Permitted Investment or (b) an Investment pursuant to Section 4.7, in either case, in an amount (the “Designation Amount”) equal to the Fair Market Value of Holdings’ proportionate interest in such Subsidiary on such date.

(b)            No Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless:

(1)       all of the Indebtedness of such Subsidiary and its Subsidiaries shall, at the date of Designation, consist of Non-Recourse Debt, except for the pledge by Holdings or any Restricted Subsidiary of the Equity Interests of such Unrestricted Subsidiary, and except for any guarantee of Indebtedness of such Subsidiary by Holdings or a Restricted Subsidiary that is permitted as both an incurrence of Indebtedness and an Investment (in each case in an amount equal to the amount of such Indebtedness so guaranteed) permitted by Section 4.7 and Section 4.9;

(2)       except to the extent permitted by Section 4.11, on the date such Subsidiary is Designated an Unrestricted Subsidiary, such Subsidiary is not party to any agreement, contract, arrangement or understanding with Holdings or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding are not materially less favorable to Holdings or the Restricted Subsidiary than those that could reasonably be expected to have been obtained at the time from Persons who are not Affiliates of Holdings; and

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

(c)            Any such Designation by the Board of Directors of Holdings shall be evidenced to the Trustee by filing with the Trustee a resolution of the Board of Directors of Holdings giving effect to such Designation and an Officer’s Certificate certifying that such Designation complies with the foregoing conditions. If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time and, if the Indebtedness is not permitted to be incurred under Section 4.9 or the Lien is not permitted under Section 4.12, Holdings shall be in default of the applicable covenant.

(d)            The Board of Directors of Holdings may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:

(1)       no Default or Event of Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and

(2)        all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture.

Any such Redesignation shall be evidenced to the Trustee by filing with the Trustee a resolution of the Board of Directors of Holdings giving effect to such Redesignation and an Officer’s Certificate certifying that such Redesignation complies with the foregoing conditions.

Section 4.17.     Effectiveness of Covenants.

(a)            Following the first day (such date, a “Suspension Date”) on which:

(1)       the Notes have an Investment Grade Rating from both of the Rating Agencies; and

(2)       no Default or Event of Default has occurred and is continuing under this Indenture,

Holdings and its Restricted Subsidiaries (including, without limitation, the Issuers) will not be subject to the provisions of this Indenture summarized under the headings below (collectively, the “Suspended Covenants”):

(i)            Section 4.7, Limitation on Restricted Payments;

(ii)          Section 4.8, Limitation on Dividend and Other Restrictions Affecting Restricted Subsidiaries;

(iii)         Section 4.9, Limitation on Additional Indebtedness;

(iv)         Section 4.10(b), Limitation on Asset Sales;

(v)          Section 4.11, Limitation on Affiliate Transactions;

(vi)         Section 4.15, Additional Guarantees (but only with respect to any Person that is required to become a Guarantor after the date of the commencement of the applicable Suspension Date);

(vii)        Section 4.16, Limitation on Designation of Unrestricted Subsidiaries; and

(viii)       Section 5.1(a)(3), Consolidation, Merger, Conveyance, Transfer or Lease.

(b)            If at any time after a Suspension Date, a credit rating assigned to the Notes is downgraded from an Investment Grade Rating by any Rating Agency or if a Default or Event of Default occurs and is continuing, then the Suspended Covenants will thereafter be reinstated as if such covenants had never been suspended (the “Reinstatement Date”) and be applicable pursuant to the terms of this Indenture (including in connection with performing any calculation or assessment to determine compliance with the terms of this Indenture), unless and until the Notes subsequently attain an Investment Grade Rating from both Rating Agencies and no Default or Event of Default is in existence (in which event the Suspended Covenants shall no longer be in effect for such time that the Notes maintain an Investment Grade Rating from both Rating Agencies and no Default or Event of Default is in existence); provided, however, that no Default, Event of Default or breach of any kind shall be deemed to exist under this Indenture, the Notes or the Guarantees with respect to the Suspended Covenants based on, and none of Holdings or any of its Subsidiaries shall bear any liability for, any actions taken or events occurring during the Suspension Period, regardless of whether such actions or events would have been permitted if the applicable Suspended Covenants remained in effect during such period. The period of time between the Suspension Date and the Reinstatement Date is referred to as the “Suspension Period.”

(c)            On the Reinstatement Date, (i) all Indebtedness incurred during the Suspension Period will be deemed to have been outstanding on the Issue Date, so that it is classified under Section 4.9(b)(3), (ii) any transaction with an Affiliate entered into after the Suspension Date will be deemed to have been outstanding on the Issue Date, so that it is classified under Section 4.11(b)(5), (iii) any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to take any actions described in Section 4.8(a), Section 4.8(b) and Section 4.8(c) entered into after the Suspension Date and existing on the Reinstatement Date will be deemed to have been outstanding on the Issue Date, so that it is classified under Section 4.8(1) and (iv) any Investment made after the Suspension Date will be deemed to have been made on the Issue Date, so that it is classified under clause (14) of the definition of Permitted Investment. Calculations made after the Reinstatement Date of the amount available to be made as Restricted Payments under Section 4.7 will be made as though Section 4.7 had been in effect since the Issue Date and throughout the Suspension Period. Accordingly, Restricted Payments made during the Suspension Period will reduce the amount available to be made as Restricted Payments under Section 4.7(a).

(d)            During any period when the Suspended Covenants are suspended, the Board of Directors of Holdings may not designate any of Holdings’ Subsidiaries as Unrestricted Subsidiaries pursuant to this Indenture.

(e)            Promptly following the occurrence of any Suspension Date or Reinstatement Date, the Issuers will provide an Officer’s Certificate to the Trustee regarding such occurrence. The Trustee shall have no obligation to monitor or independently determine or verify if a Suspension Date or Reinstatement Date has occurred or notify the Holders of any Suspension Date or Reinstatement Date. The Trustee may provide a copy of such Officer’s Certificate to any Holder of the Notes upon written request.

ARTICLE V
SUCCESSORS

Section 5.1.       Consolidation, Merger, Conveyance, Transfer or Lease.

(a)            Each of Holdings and the Issuers will not, directly or indirectly, in a single transaction or a series of related transactions, consolidate, or merge with or into another Person (whether or not Holdings or the Issuers, as applicable, are the surviving Persons), or sell, lease, transfer, convey or otherwise dispose of or assign all or substantially all of the assets of Holdings and its Restricted Subsidiaries or the Issuers and their Restricted Subsidiaries (in each case taken as a whole), as applicable, to any Person unless:

(1)       either:

(A)         Holdings or the Issuers, as applicable, will be the surviving or continuing Persons; or

(B)          the Person (if other than Holdings or the Issuers, as applicable) formed by or surviving or continuing from such consolidation or merger or to which such sale, lease, transfer, conveyance or other disposition or assignment shall be made (collectively, the “Successor”) is a corporation, limited liability company or limited partnership organized and existing under the laws of Luxembourg, the United States, any state in the United States or the District of Columbia or the United Kingdom, Canada or any member state of the European Union, and the Successor expressly assumes by agreement all of the obligations of Holdings or the Issuers, as applicable, under the Notes and this Indenture, the Security Documents and the Intercreditor Agreements and the Successor shall cause such amendments, supplements or other instruments to be executed, filed and recorded in such jurisdictions as may be required by applicable law to preserve and protect the Lien on the Collateral owned by or transferred to such Successor, together with such financing statements or comparable documents as may be required to perfect any security interests in such Collateral which may be perfected by the filing of a financing statement or a similar document under the Uniform Commercial Code or other similar statute or regulation of the relevant states or jurisdictions; provided that, in the case of the Issuers, if the Successor is not a corporation, a Restricted Subsidiary that is a corporation expressly assumes as co-obligor all of the obligations of the Issuers under this Indenture and the Notes pursuant to a supplemental indenture to this Indenture executed and delivered to the Trustee;

(2)       immediately after giving effect to such transaction and the assumption of the obligations as set forth in Section 5.1(a)(1)(B) and the incurrence of any Indebtedness to be incurred in connection therewith, and the use of any net proceeds therefrom on a pro forma basis, no Default or Event of Default shall have occurred and be continuing;

(3)       immediately after giving pro forma effect to such transaction and the assumption of the obligations as set forth in Section 5.1(a)(1)(B) and the incurrence of any Indebtedness to be incurred in connection therewith, and the use of any net proceeds therefrom on a pro forma basis, (i) Holdings, the Issuers or their respective Successors, as the case may be, could incur $1.00 of additional Indebtedness pursuant to the Coverage Ratio Exception or (ii) the Consolidated Interest Coverage Ratio for Holdings, the Issuers or their respective Successors, as the case may be, and such entity’s Restricted Subsidiaries would be greater than or equal to such Consolidated Interest Coverage Ratio prior to such transaction; and

(4)       the Issuers shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel to the effect that such merger, consolidation or transfer and such agreements, amendments, supplements or other instruments (if any) and/or supplemental indenture (if any) comply with this Indenture and the Security Documents and that all covenants and conditions precedent to the execution and delivery of such agreements and/or supplemental indenture have been satisfied.

For purposes of this Section 5.1, any Indebtedness of the Successor which was not Indebtedness of Holdings or the Issuers, as applicable, immediately prior to the transaction shall be deemed to have been incurred in connection with such transaction.

(b)            Except in circumstances under which this Indenture provides for the release of the Guarantee of a Subsidiary Guarantor as described under Section 11.5, no Subsidiary Guarantor will, and Holdings will not permit any Subsidiary Guarantor to, directly or indirectly, in a single transaction or a series of related transactions, consolidate or merge or amalgamate with or into another Person (whether or not the Subsidiary Guarantor is the surviving Person), or sell, lease, transfer, convey or otherwise dispose of or assign all or substantially all of the assets of such Subsidiary Guarantor to any Person, unless either:

(1)

(2)       the transaction is made in compliance with Section 4.10.

For purposes of the foregoing, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of Holdings or the Issuers, as applicable, the Equity Interests of which constitute all or substantially all of the properties and assets of Holdings or the Issuers, as applicable, will be deemed to be the transfer of all or substantially all of the properties and assets of Holdings or the Issuers, as applicable.

(c)            Upon any consolidation or merger or amalgamation of Holdings, the Issuers or a Guarantor, or any transfer of all or substantially all of the assets of Holdings, the Issuers or a Guarantor in accordance with the foregoing, in which Holdings, the Issuers or such Guarantor are not the continuing obligors under the Notes or their Guarantee, as applicable, the surviving entity formed by such consolidation or merger or amalgamation or into which Holdings, the Issuers or such Guarantor is merged or amalgamated or the Person to which the sale, conveyance, lease, transfer, disposition or assignment is made will succeed to, and be substituted for, and may exercise every right and power of, Holdings, the Issuers or such Guarantor, as applicable, under the Notes or its Guarantee, as the case may be, this Indenture, the Security Documents and the Intercreditor Agreements with the same effect as if such surviving entity had been named therein as Holdings, the Issuers or such Guarantor, as the case may be, and, except in the case of a lease, Holdings, the Issuers or such Guarantor, as the case may be, will be released from the obligation to pay the principal of and interest on the Notes or in respect of its Guarantee, as the case may be, and all of Holdings’, the Issuers’ or such Guarantor’s other obligations and covenants under the Notes or its Guarantee, as the case may be, as well as this Indenture, the Security Documents and the Intercreditor Agreements.

(d)            Notwithstanding the foregoing, (i) any Restricted Subsidiary (other than the Issuers) may consolidate or merge or amalgamate with or into or convey, transfer, sell, dispose, assign or lease, in one transaction or a series of transactions, all or substantially all of its assets to Holdings or another Restricted Subsidiary and (ii) the Issuers or any Guarantor (including Holdings) may consolidate or merge or amalgamate with or into or convey, transfer or lease, in one transaction or a series of transactions, all or part of its properties and assets to the Issuers or another Guarantor (including Holdings) or merge or amalgamate with a Restricted Subsidiary of Holdings solely for the purpose of reincorporating the Issuers or Guarantor in a State of the United States or the District of Columbia or Canada, as long as the amount of Indebtedness of the Issuers or such Guarantor and their Restricted Subsidiaries is not increased thereby.

ARTICLE VI
DEFAULTS AND REMEDIES

Section 6.1.       Events of Default. Each of the following is an “Event of Default”:

(1)       failure to pay interest on any of the Notes when the same becomes due and payable and the continuance of any such failure for 30 days;

(2)       failure to pay principal of or premium, if any, on any of the Notes when it becomes due and payable, whether at Stated Maturity, upon redemption, required purchase, acceleration or otherwise;

(3)       failure by Holdings, the Issuers or any of their Restricted Subsidiaries to comply with any of their respective agreements or covenants described under Section 5.1;

(4)       failure by the Issuers to comply in respect of their obligations to make a Change of Control Offer under Section 4.13 or either a Collateral Disposition Offer or a Net Proceeds Offer under Section 4.10 and continuance of this failure for 30 days after notice of the failure has been given to the Issuers by the Trustee or to the Issuers and the Trustee by the Holders of at least 25.0% of the aggregate principal amount of the Notes then outstanding;

(5)       failure for 90 days after notice from the Trustee or Holders of at least 25% in aggregate principal amount of the Notes then outstanding to comply with the provisions described under Section 4.3;

(6)       except as described in Section 6.1(3), Section 6.1(4) and Section 6.1(5) above, failure by Holdings, the Issuers or any Restricted Subsidiary to comply with any other covenant or agreement contained in this Indenture, the Notes, the Intercreditor Agreements or the Security Documents and continuance of this failure for 60 days after notice of the failure has been given to the Issuers by the Trustee or to the Issuers and the Trustee by the Holders of at least 25.0% of the aggregate principal amount of the Notes then outstanding;

(7)       default by Holdings, the Issuers or any Restricted Subsidiary under any mortgage, indenture or other instrument or agreement under which there is issued or by which there is secured or evidenced Indebtedness for borrowed money by Holdings, the Issuers or any Restricted Subsidiary, whether such Indebtedness now exists or is incurred after the Issue Date, other than intercompany Indebtedness, which default:

(A)         is caused by a failure to pay at its Stated Maturity principal on such Indebtedness within the applicable express grace period and any extensions thereof, or

(B)          results in the acceleration of such Indebtedness prior to its Stated Maturity (which acceleration is not rescinded, annulled or otherwise cured within 30 days of receipt by Holdings, the Issuers or such Restricted Subsidiary of notice of any such acceleration),

and, in each case, the principal amount of such Indebtedness, together with the principal amount of any other Indebtedness with respect to which an event described in Section 6.1(7)(A) or Section 6.1(7)(B) has occurred and is continuing, aggregates $50.0 million or more;

(8)       one or more final judgments entered by a court of competent jurisdiction (to the extent not covered by insurance) for the payment of money in an aggregate amount in excess of $50.0 million shall be rendered against Holdings, the Issuers, any of their Significant Subsidiaries or group of Restricted Subsidiaries that, taken together (as of the latest audited consolidated financial statements for Holdings and its Restricted Subsidiaries), would constitute a Significant Subsidiary, and the same shall remain undischarged for a period of 60 consecutive days during which execution shall not be effectively stayed;

(9)       Holdings, the Issuers or any Significant Subsidiary of Holdings or the Issuers or group of Restricted Subsidiaries of Holdings and the Issuers that, taken together (as of the latest audited consolidated financial statements for Holdings and its Restricted Subsidiaries), would constitute a Significant Subsidiary, pursuant to or within the meaning of any Bankruptcy Law:

(A)         commences a voluntary case,

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

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

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

(E)          generally is not paying, or is unable to pay, or admits in writing its inability to pay, its debts as they become due and with respect to Venator Finance, has lost its creditworthiness (crédit ébranlé),

(F)           commences any bankruptcy (faillite), controlled management (gestion contrôlée), reprieve from payments (sursis de paiement) or composition with creditors (concordat préventif de la faillite) with respect to Venator Finance, insolvency, liquidation, moratorium, reorganization process or other process under similar laws affecting the rights of creditors in Luxembourg, or

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

(i)            is for relief against Holdings, the Issuers or any Significant Subsidiary of Holdings or the Issuers or group of Restricted Subsidiaries of Holdings or the Issuers that, taken together (as of the latest audited consolidated financial statements for Holdings and its Restricted Subsidiaries), would constitute a Significant Subsidiary, in an involuntary case;

(ii)           appoints a custodian of Holdings, the Issuers or any Significant Subsidiary of Holdings, the Issuers or group of Restricted Subsidiaries of Holdings or the Issuers that, taken together (as of the latest audited consolidated financial statements for Holdings and its Restricted Subsidiaries), would constitute a Significant Subsidiary or for all or substantially all of the property of Holdings, the Issuers or any Significant Subsidiary of Holdings, the Issuers or group of Restricted Subsidiaries of Holdings or the Issuers that, taken together (as of the latest audited consolidated financial statements for Holdings and its Restricted Subsidiaries), would constitute a Significant Subsidiary; or

(iii)           orders the liquidation of Holdings, the Issuers or any Significant Subsidiary of Holdings, the Issuers or group of Restricted Subsidiaries of Holdings or the Issuers that, taken together (as of the latest audited consolidated financial statements for Holdings and its Restricted Subsidiaries), would constitute a Significant Subsidiary

and, in each case, the order or decree remains unstayed and in effect for 60 consecutive days;

(10)     the Guarantee of Holdings or of any Guarantor that is a Significant Subsidiary (or any group of Guarantors that, taken together, as of the latest audited consolidated financial statements of Holdings, would constitute a Significant Subsidiary) ceases to be in full force and effect (other than in accordance with the terms of such Guarantee and this Indenture) or is declared null and void and unenforceable or found to be invalid or Holdings or any Guarantor that is a Significant Subsidiary (or any group of Guarantors that, taken together, as of the latest audited consolidated financial statements of Holdings, would constitute a Significant Subsidiary) denies its liability under the Guarantee of Holdings or such Guarantor (other than by reason of release of such Guarantor or such group of Guarantors from its Guarantee in accordance with the terms of this Indenture and the Guarantee); or

(11)     the occurrence of any of the following:

(A)         any Security Document or any obligation under the Intercreditor Agreements is held in any judicial proceeding to be unenforceable or invalid in any material respect or ceases for any reason to be in full force and effect in any material respect, other than in accordance with the terms of this Indenture, the relevant Security Documents or the Intercreditor Agreements; provided that it will not be a Default if the sole result is that any Lien with a fair market value of not more than $30.0 million ceases to be enforceable;

(B)          with respect to any Collateral having a fair market value in excess of $30.0 million, individually or in the aggregate, (x) the failure of the Lien with respect to such Collateral under the Security Documents, at any time, to be in full force and effect in any material respect for any reason other than in accordance with the terms of the relevant Security Documents and the terms of this Indenture or the Intercreditor Agreements, as applicable, and other than the satisfaction in full of all obligations under this Indenture and discharge of this Indenture, if such failure continues for 60 days or (y) the assertion by the Issuers or any Guarantor, in any pleading in any court of competent jurisdiction, that any such Lien is invalid or unenforceable; provided that it will not be an Event of Default if such condition results from the action or inaction of the Trustee or the Notes Collateral Agent; or

(C)           Holdings, the Issuers or any Significant Subsidiary that is a Guarantor (or any such Guarantors that taken together would constitute a Significant Subsidiary), or any Person acting on behalf of any of them, denies or disaffirms, in writing, any material obligation of Holdings, the Issuers or such Significant Subsidiary that is a Guarantor (or such Guarantors that taken together would constitute a Significant Subsidiary) set forth in or arising under this Indenture, the Intercreditor Agreements or any Security Document.

Section 6.2.       Acceleration. If an Event of Default (other than an Event of Default specified in Section 6.1(9) with respect to Holdings or the Issuers), shall have occurred and be continuing under this Indenture, the Trustee, by written notice to the Issuers, or the Holders of at least 25.0% in aggregate principal amount of the Notes then outstanding by written notice to the Issuers and the Trustee, may declare (an “acceleration declaration”) all amounts owing under the Notes to be due and payable. Upon such acceleration declaration, the aggregate principal of and accrued and unpaid interest on the outstanding Notes shall become due and payable immediately; provided, however, that after such acceleration, but before a judgment or decree based on acceleration, the Holders of a majority in aggregate principal amount of such outstanding Notes may rescind and annul such acceleration if all Events of Default, other than the nonpayment of accelerated principal and accrued and unpaid interest, have been cured or waived as provided in this Indenture. If an Event of Default specified in Section 6.1(9) occurs with respect to Holdings or the Issuers, all outstanding Notes shall become due and payable without any further action or notice to the extent permitted by applicable law.

In the case of an Event of Default specified in Section 6.1(7) above, such Event of Default and all consequences thereof (excluding, however, any resulting Payment Default) will be annulled, waived and rescinded with respect to the Notes, automatically and without any action by the Trustee or the Holders, if within 30 days after such Event of Default first arose the Issuers deliver an Officer’s Certificate to the Trustee stating that (a) the Indebtedness or Guarantee that is the basis for such Event of Default has been paid or discharged, (b) the holders of the Indebtedness have rescinded or waived the acceleration giving rise to such Event of Default or (c) the Default that is the basis for such Event of Default has been otherwise cured; provided, however, that in no event shall an acceleration of the principal amount of the Notes as described above be annulled, waived or rescinded upon the happening of any such events.

After such acceleration, but before a judgment or decree based on acceleration, the Holders of a majority in aggregate principal amount of the Notes then outstanding may rescind and annul such acceleration and its consequences if:

(1)       the rescission would not conflict with any judgment or decree;

(2)       all existing Events of Default have been cured or waived other than nonpayment of accelerated principal and interest;

(3)       to the extent the payment of such interest is lawful, interest on overdue installments of interest and overdue principal, which has become due otherwise than by such declaration of acceleration, has been paid; and

(4)       the Issuers have paid the Trustee and the Notes Collateral Agent their reasonable compensation and reimbursed the Trustee and the Notes Collateral Agent for their reasonable expenses, disbursements and advances.

No such rescission shall affect any subsequent Default or impair any right consequent thereto.

Section 6.3.       Other Remedies. If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy to collect the payment of principal, premium, if any, and interest, if any, on the Notes or to enforce the performance of any provision of the Notes or this Indenture.

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

Section 6.4.       Waiver of Past Defaults. Subject to Section 9.2, the Holders of a majority in aggregate principal amount of the Notes then outstanding by written notice to the Trustee and the Notes Collateral Agent may, on behalf of the Holders of all of the Notes, waive any existing Default or Event of Default and its consequences under this Indenture except a continuing Default or Event of Default in the payment of the principal of, premium, if any, or interest on the Notes. 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.

Section 6.5.       Control by Majority. The Holders of a majority in aggregate principal amount of the then outstanding Notes may direct the time, method and place of conducting any proceeding for exercising any remedy available to the Trustee or the Notes Collateral Agent or exercising any trust power conferred on them. However, (i) the Trustee or the Notes Collateral Agent may refuse to follow any direction that conflicts with law or this Indenture, that may involve the Trustee or the Notes Collateral Agent in personal liability or that the Trustee or the Notes Collateral Agent determines in good faith may be unduly prejudicial to the rights of Holders not joining in the giving of such direction and (ii) the Trustee or the Notes Collateral Agent may take any other action it deems proper that is not inconsistent with any such direction received from the Holders.

Section 6.6.        Limitation on Suits. A Holder may not pursue any remedy with respect to this Indenture or the Notes (subject to the Intercreditor Agreements) unless:

(1)       the Holder gives to the Trustee written notice of a continuing Event of Default;

(2)       the Holder or Holders of at least 25.0% in aggregate principal amount of then outstanding Notes make a written request to the Trustee to pursue the remedy;

(3)       such Holder or Holders offer the Trustee indemnity satisfactory to the Trustee against any costs, liability or expense;

(4)       the Trustee does not comply with the request within 60 days after receipt of the request and the offer of indemnity; and

(5)       during such 60-day period, the Holders of a majority in aggregate principal amount of the then outstanding Notes do not give the Trustee a direction that is inconsistent with the request.

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

Section 6.7.       Rights of Holders of Notes to Receive Payment. Notwithstanding any other provision of this Indenture, the contractual right of any Holder to receive payment of the principal of, premium, if any, or interest on, such Note or to bring suit for the enforcement of any such payment, on or after the due date expressed in the Notes, shall not be modified without the consent of the Holder.

Section 6.8.       Collection Suit by Trustee. If an Event of Default specified in Section 6.1(1) or Section 6.1(2) occurs and is continuing, the Trustee is authorized to recover judgment in its own name and as trustee of an express trust against the Issuers for the whole amount of principal of, premium and interest remaining unpaid on the Notes and interest on overdue principal and, to the extent lawful, 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, the Notes Collateral Agent, their agents and counsel.

Section 6.9.       Trustee May File Proofs of Claim. The Trustee is authorized to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee and the Notes Collateral Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, the Notes Collateral Agent, their agents and counsel) and the Holders allowed in any judicial proceedings relative to the Issuers (or any other obligor upon the Notes), their creditors or their property and shall be entitled and empowered to collect, receive and distribute any money or other securities or property payable or deliverable upon the conversion or exchange of the Notes or on any such claims, and any custodian in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, the Notes Collateral Agent, their agents and counsel, and any other amounts due the Trustee or Notes Collateral Agent under Section 7.6. To the extent that the payment of any such compensation, expenses, disbursements and advances to the Trustee, the Notes Collateral Agent, their agents and counsel, and any other amounts due the Trustee or Notes Collateral Agent under Section 7.6 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 in this Section 6.9 shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.

Section 6.10.     Priorities. Subject to the Intercreditor Agreements and subject to applicable law, if the Trustee collects any money or property pursuant to this Article VI, it shall pay out the money and property in the following order:

First: to the ratable payment of fees, costs, expenses (including reasonable attorneys’ fees and expenses and court costs), and indemnities of the Notes Collateral Agent and the Trustee;

Second: to the ratable payment of the Obligations under the Notes Documents; and

Third: the balance, if any, to the Issuers, the Guarantors or to whosoever may be lawfully entitled to receive the same or as a court of competent jurisdiction may direct.

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

Section 6.11.     Undertaking for Costs. In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as the Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.7, or a suit by Holders of more than 10.0% in principal amount of the then outstanding Notes.

ARTICLE VII
TRUSTEE

Section 7.1.       Duties of Trustee.

(a)            If an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in its exercise as a prudent person would exercise or use under the circumstances in the conduct of his or her 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)       the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein); provided, however, the Trustee shall examine the certificates and opinions furnished to it 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 grossly negligent action, its own grossly negligent failure to act, or its own willful misconduct, except that:

(1)       this Section 7.1(c) does not limit the effect of Section 7.1(b);

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

(3)       the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.5; and

(4)       no provision of this Indenture shall require the Trustee to expend or risk its own funds or incur any liability.

(d)            The Trustee shall not be liable for interest on or the investment of any money received by it except as the Trustee may agree in writing with the Issuers. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law. In the absence of written instruction from the Issuers, money held by the Trustee shall remain uninvested. The Trustee shall have no responsibility or liability for any loss which may result from any investment or sale of any investment made pursuant to this Indenture. The Trustee is hereby authorized, in making or disposing of any investment permitted by this Indenture, to deal with itself (in its individual capacity) or with any one or more of its Affiliates, whether or not any such Affiliate is acting as an agent of the Trustee or for any third person or deal as principal for its own account. The Parties acknowledge that the Trustee is not providing any investment supervision, recommendations or advice.

(e)            Whether or not therein expressly so provided, every provision of this Indenture that in any way relates to the Trustee is subject to this Section 7.1 and Section 7.2.

(f)            The Trustee agrees to accept and act upon facsimile, pdf or electronic transmission of documents hereunder.

Section 7.2.       Rights of Trustee.

(a)            The Trustee may request and conclusively rely and shall be fully protected in acting or refraining from acting on any resolution, certificate, statement, instrument, opinion, notice, report, request, direction, consent, order, judgment, bond, debenture or other document (whether in original or facsimile form) 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 therein.

(b)            Before the Trustee acts or refrains from acting, it may require an Officer’s Certificate or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officer’s Certificate or Opinion of Counsel. Prior to taking, suffering or admitting any action, the Trustee may consult with counsel of the Trustee’s own choosing, and the Trustee shall be fully protected from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in conclusive reliance on the advice or opinion of such counsel.

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

(d)            The Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within the discretion or 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 Issuers or a Guarantor shall be sufficient if signed by an Officer of the Issuers or such Guarantor.

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

(g)            The Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or documents, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine during normal business hours the books, records and premises of the Issuers, personally or by agent or attorney at the sole cost of the Issuers, subject to execution of reasonable confidentiality agreements and attorney-client privilege, and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation.

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

(i)            The Trustee may request that the Issuers and each of the Guarantors deliver to the Trustee an Officer’s Certificate setting forth the names of individuals and/or titles of Officers of the Issuers and each Guarantor, as applicable, authorized at such time to take specified actions pursuant to this Indenture, the Notes and the Guarantees on behalf of the Issuers and/or the Guarantors, which Officer’s Certificate may be signed by any Person authorized to sign an Officer’s Certificate, including any Person specified as so authorized in any such certificate previously delivered and not superseded.

(j)            The Trustee shall not be deemed to have notice or be charged with knowledge of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or the Trustee shall have received from the Issuers or any other obligor upon the Notes or from any Holder written notice thereof at its address set forth in Section 12.2 and such notice references the Notes and this Indenture and states that it is a “notice of default.” In the absence of such actual knowledge or such notice, the Trustee may conclusively assume that no such Default or Event of Default exists.

(k)            In no event shall the Trustee be responsible or liable for special, indirect, incidental, 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.

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

(m)         The Trustee will be permitted to engage in other transactions; provided, however, that if it acquires any conflicting interest, it must eliminate such conflict within 90 days or resign.

(n)          The Issuers will be responsible for making calculations called for under the Notes, including, but not limited to, determination of redemption price, premium, if any, and any other amounts payable on the Notes. The Issuers will make the calculations in good faith and, absent manifest error, their calculations will be final and binding on the Holders of the Notes. The Issuers will provide a schedule of their calculations to the Trustee, upon request, when applicable, and the Trustee is entitled to rely conclusively on the accuracy of the Issuers’ calculations without independent verification.

(o)          The Trustee shall be under no obligation to effect or maintain insurance or to renew any policies of insurance or to inquire as to the sufficiency of any policies of insurance carried by the Company or any Guarantor, or to report, or make or file claims or proof of loss for, any loss or damage insured against or that may occur, or to keep itself informed or advised as to the payment of any taxes or assessments, or to require any such payment to be made.

(p)            The permissive rights of the Trustee to do things enumerated in this Indenture shall not be construed as duties.

(q)            Neither the Trustee nor the Notes Collateral Agent shall be liable for any amount in excess of the value of the Collateral held by it.

(r)            Notwithstanding anything to the contrary set forth herein, in no event shall the Trustee or the Paying Agent be liable for interest on any money received by it (including, but not limited to, any negative interest) except as the Trustee or the Paying Agent may otherwise agree in writing with the Issuers. In the event that market conditions are such that negative interest applies to amounts deposited with the Trustee or the Paying Agent, the Issuers shall be responsible for the payment of such interest and the Trustee or the Paying Agent shall be entitled to deduct from amounts on deposit with it an amount necessary to pay such negative interest. For the avoidance of doubt, the compensation, reimbursement and indemnification protections afforded to the Trustee and the Paying Agent under Section 7.06 of this Indenture shall cover any interest-related expenses incurred by the Trustee or the Paying Agent in the performance of their duties hereunder.

Section 7.3.       Individual Rights of the Trustee. The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Issuers or any Affiliate of the Issuers with the same rights it would have if it were not Trustee. However, in the event that the Trustee acquires any conflicting interest, it must eliminate such conflict within 90 days or resign. Any Agent may do the same with like rights and duties. The Trustee is also subject to Section 7.9.

Section 7.4.       Trustee’s Disclaimer. The Trustee shall not be responsible for and makes no representation as to the validity or adequacy of this Indenture, the Notes, any Guarantee or any Notes Documents, it shall not be accountable for the use of the proceeds from the Notes or any money paid to the Issuers or upon the Issuers’ 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, any statement in the Notes or any Notes Documents, any Officer’s Certificate delivered to the Trustee hereunder, or any other document in connection with the sale of the Notes or pursuant to this Indenture other than the Trustee’s certificate of authentication hereunder. The Trustee shall have no duty to know or inquire as to the performance or non-performance of any provision of any party under the Notes Documents. Neither the Trustee nor any of its directors, officers, employees agents or Affiliates shall have any duty to monitor the performance or any action of the Issuers or any of their directors, members, officers, agents, Affiliates or employees, nor shall it have any liability in connection with the malfeasance or nonfeasance by such party. The Trustee may assume performance by all such persons of their respective obligations. The Trustee shall have no enforcement or notification obligations relating to breaches of representations or warranties of any other Person.

Section 7.5.       Notice of Defaults. If a Default or Event of Default occurs and is continuing and if it is actually known to a Responsible Officer of the Trustee, the Trustee shall deliver to Holders a notice of the Default or Event of Default within 90 days after it obtains such knowledge, unless such Default shall have been cured or waived. Except in the case of a Default or Event of Default in payment of principal of, premium, if any, or interest on any Note, the Trustee may withhold the notice if and so long as the Trustee in good faith determines that the withholding of such notice is in the interest of the Holders.

Section 7.6.       Compensation and Indemnity. The Issuers shall pay to the Trustee from time to time reasonable compensation for its acceptance of this Indenture and for all services rendered by it hereunder as agreed upon in writing. The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust. The Issuers 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 (as well as any notarial fees relating to the granting of any Spanish Public Document and registration fees, if any), except any such expense, disbursement or advance as may be attributable to its gross negligence or willful misconduct. Such expenses shall include the reasonable compensation, disbursements and expenses of the Trustee’s agents and counsel.

Each of the Issuers and the Guarantors, jointly and severally, shall indemnify and hold harmless the Trustee (which for purposes of this Section 7.6 shall include its officers, directors, employees and agents) against any and all claims, damages, losses, liabilities, costs or expenses incurred by it (including, without limitation, the fees and expenses of its agents and counsel) arising out of or in connection with the acceptance or administration of its duties under this Indenture, the performance of its obligations and/or exercise of its rights hereunder, including the costs and expenses of enforcing this Indenture against the Issuers or any Guarantor (including this Section 7.6 and notarial fees relating to any Spanish Public Document, court clerk fees (procurador) (only if their intervention is mandatory), court costs and any sworn translation costs and together with any applicable VAT) and defending itself against any claim (whether asserted by the Issuers or any Holder or any other Person) or liability in connection with the exercise or performance of any of its powers or duties hereunder, except to the extent any such loss, claim, damage, liability or expense shall be caused by its own gross negligence or willful misconduct. The Trustee shall notify the Issuers promptly of any claim for which it may seek indemnity. Failure by the Trustee to so notify the Issuers shall not relieve the Issuers of their obligations hereunder. In the event that defense of any such claim is assumed by the Issuers or a Guarantor, it shall be done so with the Trustee’s consent, and the Trustee may have one separate counsel, and the Issuers shall pay the reasonable fees and expenses of such counsel for the Trustee. The Issuers need not pay for any settlement made without their consent, which consent shall not be unreasonably withheld.

The obligations of the Issuers and the Guarantors under this Section 7.6 shall survive the satisfaction and discharge of this Indenture, the payment of the Notes or the resignation or removal of the Trustee.

To secure the Issuers’ payment obligations in this Section 7.6, the Trustee shall have a Lien prior to the Notes on all money or property held or collected by the Trustee, except that held in trust to pay principal or interest, if any, on particular Notes. Such Lien shall survive the satisfaction and discharge of this Indenture, the payment of the Notes and the resignation or removal of the Trustee.

When the Trustee incurs expenses or renders services after an Event of Default specified in Section 6.1(9) 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.

Section 7.7.       Replacement of Trustee. A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor trustee’s acceptance of appointment as provided in this Section 7.7.

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

(a)            the Trustee fails to comply with Section 7.9;

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

(c)            a receiver of the Trustee or of its property is appointed or any public officer takes charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation; or

(d)            the Trustee becomes incapable of acting.

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

If a successor trustee does not take office within 30 days after the retiring Trustee resigns or is removed, such retiring Trustee (at the expense of the Issuers), the Issuers or the Holders of at least 10.0% in principal amount of the then outstanding Notes may petition any court of competent jurisdiction for the appointment of a successor trustee.

If the Trustee, after written request by any Holder who has been a Holder for at least six months, fails to comply with Section 7.9, such Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor trustee.

A successor trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Issuers. Thereupon, the resignation or removal of the retiring Trustee shall become effective, and the successor trustee shall have all the rights, powers and the duties of the Trustee under this Indenture. The successor trustee shall mail a notice of its succession to the Holders. The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee; provided that all sums owing to such Trustee hereunder have been paid and subject to the Lien provided for in Section 7.6. Notwithstanding replacement of the Trustee pursuant to this Section 7.7, the Issuers’ and the Guarantors’ obligations under Section 7.6 shall continue for the benefit of the retiring Trustee.

Section 7.8.       Successor Trustee by Merger, Etc. If the Trustee or any Agent consolidates, merges or converts into, or transfers all or substantially all of its corporate trust business (including this transaction) to, another corporation, the successor corporation without any further act shall be the successor Trustee or any Agent, as applicable, without the execution or filing of any instrument or paper or the performance of any further act.

Section 7.9.       Eligibility; Disqualification. There shall at all times be a Trustee hereunder that is a corporation 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 trust powers and that is subject to supervision or examination by federal or state authorities. Such Trustee (or its parent) together with its Affiliates shall at all times have a combined capital surplus of at least $50.0 million as set forth in its most recent annual report of condition.

Section 7.10.     Appointment of Authenticating Agent.

(a)            At any time when any of the Notes remain outstanding, the Trustee may appoint an Authenticating Agent or Agents with respect to the Notes which shall be authorized to act on behalf of the Trustee to authenticate the Notes and the Trustee shall give written notice of such appointment to all Holders of Notes, in the manner provided for in Section 12.2. Notes so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Any such appointment shall be evidenced by an instrument in writing signed by the Trustee, and a copy of such instrument shall be promptly furnished to the Issuers. Wherever reference is made in this Indenture to the authentication and delivery of Notes by the Trustee or the Trustee’s certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent.

(b)            Each Authenticating Agent shall be reasonably acceptable to the Issuers and shall at all times be a corporation organized and doing business under the laws of the United States of America, any state thereof or the District of Columbia, authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of at least $50.0 million and subject to supervision or examination by federal or state authority. If such corporation publishes or files reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section 7.10, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published or filed. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section 7.10, it shall resign immediately in the manner and with the effect specified in this Section 7.10.

(c)            Any corporation into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to the corporate agency or corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent; provided that such corporation shall be otherwise eligible under this Section 7.10, without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent.

(d)            An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee and to the Issuers. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Issuers. Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section 7.10, the Trustee may appoint a successor Authenticating Agent which shall be acceptable to the Issuers and shall give written notice of such appointment to all Holders of Notes, in the manner provided for in Section 12.2. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section 7.10.

(e)            The Issuers agree to pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section.

Section 7.11.     Spanish Provisions in Relation to the Spanish Liens.

(a)            By their acceptance of the Notes and the Guarantees thereof, the Holders hereby authorize and direct the Trustee to execute and deliver the Spanish Liens in which the Trustee is named as a party, including any Spanish Liens executed after the Issue Date (expressly including appearing before Spanish notaries to grant or execute any Spanish Public Document or private document related to this mandate and, specifically, those deemed necessary or appropriate according to the mandate received (including, but not limited to, amendments or ratifications of this Indenture, the Guarantees or any other document related thereto, all the above with express faculties of self-contracting (subcontratación), sub-empowering (subdelegación) or multiple representation (multirepresentación)). It is hereby expressly acknowledged and agreed that, in doing so, the Trustee is not responsible for the terms or contents of such agreements, or for the validity or enforceability thereof, or the sufficiency thereof for any purpose. Whether or not so expressly stated therein, in entering into, or taking (or forbearing from) any action under, the Spanish Liens, the Trustee shall have all of the rights, immunities, indemnities and other protections granted to it under this Indenture (in addition to those that may be granted to it under the terms of such other agreement or agreements).

(b)            The Holders shall, if so requested by the Trustee in relation to any eventual enforcement of any Spanish Liens, (i) grant a power of attorney in favor of the Trustee entitling it to grant, perfect, register, novate, enforce and/or cancel the relevant Spanish Liens and (ii) notarize and apostille, at their own cost, such power of attorney before a notary public in their jurisdiction of incorporation (if the process of notarization and apostille exists within that relevant jurisdiction, if not, to carry out the proper legalization process in order for such power of attorney to be valid in Spain). Neither the Trustee nor the Notes Collateral Agent shall have any liability for any failure of the Holders to grant a power of attorney or to otherwise execute, notarize, and apostille any document required in order for the Trustee or Notes Collateral Agent to exercise any rights, remedies, powers or discretions in respect of the Spanish Liens.

ARTICLE VIII
DEFEASANCE; DISCHARGE OF THIS INDENTURE

Section 8.1.       Option to Effect Legal Defeasance or Covenant Defeasance. The Issuers may, by delivery of an Officer’s Certificate, at their option and at any time, elect to have either Section 8.2 or Section 8.3 applied to all outstanding Notes upon compliance with the conditions set forth below in this Article VIII.

Section 8.2.       Legal Defeasance. Upon the Issuers’ exercise under Section 8.1 of the option applicable to this Section 8.2, the Issuers shall, subject to the satisfaction of the conditions set forth in Section 8.4, be deemed to have been discharged from their obligations with respect to all outstanding Notes on the date the conditions set forth below are satisfied (hereinafter, “Legal Defeasance”). For this purpose, Legal Defeasance means that the Issuers and the Guarantors shall be deemed to have paid and discharged the entire Obligations represented by the Notes and the Guarantees, which shall thereafter be deemed to be outstanding only for the purposes of Section 8.5 and the other Sections of this Indenture referred to in Section 8.2(a) and Section 8.2(b), and to have satisfied all of its other Obligations under such Notes, Guarantees and this Indenture (and the Trustee, on written demand of and at the expense of the Issuers, shall execute instruments acknowledging the same), and this Indenture shall cease to be of further effect as to all such Notes and Guarantees, except for the following provisions which shall survive until otherwise terminated or discharged hereunder: (a) the rights of Holders of outstanding Notes to receive payments in respect of the principal of, and interest and premium, if any, on such Notes when such payments are due from the trust funds referred to in Section 8.4(1) (but not a Change of Control Payment or the payment pursuant to a Collateral Disposition Offer or Net Proceeds Offer); (b) the Issuers’ obligations with respect to such Notes under Section 2.2, Section 2.3, Section 2.4, Section 2.7, Section 2.10, and Section 4.2; (c) the rights, powers, trust, duties, immunities and indemnities of the Trustee, including without limitation thereunder, under Section 7.6, Section 8.5 and Section 8.7, and the obligations of the Issuers and the Guarantors in connection therewith; and (d) the provisions of this Article VIII.

Subject to compliance with this Article VIII, the Issuers may exercise their option under this Section 8.2 notwithstanding the prior exercise of their option under Section 8.3. If the Issuers exercise the Legal Defeasance option, the Liens on the Collateral will be released and the Guarantees in effect at such time will automatically be released.

Section 8.3.       Covenant Defeasance. Upon the Issuers’ exercise under Section 8.1 of the option applicable to this Section 8.3, the Issuers shall, subject to the satisfaction of the conditions set forth in Section 8.4 below, be released from their obligations under Section 4.3, Section 4.5, Section 4.7, Section 4.8, Section 4.9, Section 4.10, Section 4.11, Section 4.12, Section 4.13, Section 4.15, Section 4.16 and Section 5.1(a)(3) on and after the date the conditions set forth below are satisfied (hereinafter, “Covenant Defeasance”), and the Notes shall thereafter be deemed not outstanding for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed outstanding for all other purposes hereunder (it being understood that such Notes shall not be deemed outstanding for accounting purposes). For this purpose, Covenant Defeasance means that, with respect to the outstanding Notes, Holdings, the Issuers or any of their Subsidiaries 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 Event of Default under Section 6.1, but, except as specified above, the remainder of this Indenture and such Notes shall be unaffected thereby.

If the Issuers exercise the Covenant Defeasance option, the Liens on the Collateral will be released and the Guarantees in effect at such time will automatically be released.

Section 8.4.       Conditions to Legal or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.2 or Section 8.3 to the outstanding Notes:

(1)       the Issuers must irrevocably deposit with the Trustee, as trust funds, in trust solely for the benefit of the Holders, U.S. legal tender, U.S. Government Obligations or a combination thereof, in such amounts as will be sufficient (without consideration of any reinvestment of interest) to pay the principal of and interest, if any, on the outstanding Notes on the stated date for payment thereof or on the applicable redemption date, as the case may be;

(2)       in the case of Legal Defeasance, the Issuers shall have delivered to the Trustee an Opinion of Counsel in the United States confirming that:

(A)         the Issuers have received from, or there has been published by, the Internal Revenue Service a ruling, or

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

in either case to the effect that, and based thereon this Opinion of Counsel shall confirm that, subject to customary assumptions and exclusions, the beneficial owners of the outstanding Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of the Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;

(3)       in the case of Covenant Defeasance, the Issuers shall have delivered to the Trustee an Opinion of Counsel in the United States confirming that, subject to customary assumptions and exclusions, the beneficial owners of the outstanding Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of the Covenant Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;

(4)            no Default shall have occurred and be continuing on the date of such deposit (other than a Default resulting from the borrowing of funds to be applied to such deposit (and any similar concurrent deposit relating to other Indebtedness) and the grant of any Lien securing such borrowings);

(5)            the Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any other material agreement or instrument (other than this Indenture and the agreements governing any other Indebtedness being defeased, discharged or replaced) to which Holdings, the Issuers or any of their Subsidiaries are parties or by which Holdings, the Issuers or any of their Subsidiaries are bound or, if such breach, violation or default would occur, such breach, violation or default is waived as of, and for all purposes, on and after, the date of such deposit; and

(6)            the Issuers shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel stating that the conditions precedent provided for in Section 8.4(1) through Section 8.4(5) have been complied with; provided that the opinion with respect to the condition in Section 8.4(5) may be limited to a review of instruments certified by an Officer as being the only material instruments of the Issuers.

If the funds deposited with the Trustee to effect Covenant Defeasance are insufficient to pay the principal of and interest on the Notes when due, then the Issuers’ obligations and the obligations of the Guarantors under this Indenture will be revived and no such defeasance will be deemed to have occurred.

Section 8.5.            Deposited Money and U.S. Government Obligations to Be Held in Trust; Other Miscellaneous Provisions. Subject to Section 8.6, all U.S. legal tender and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 8.5, the “Deposit Trustee”) pursuant to Section 8.4 or Section 8.8 in respect of the outstanding Notes shall be held in trust, shall not be invested, and shall be applied by the Deposit Trustee in accordance with the provisions of such Notes and this Indenture to the payment, either directly or through any Paying Agent (including Holdings, the Issuers or any Subsidiary acting as Paying Agent) as the Deposit Trustee may determine, to the Holders of such Notes of all sums due and to become due thereon in respect of principal, premium, if any, and interest, if any, but such money need not be segregated from other funds except to the extent required by law.

The Issuers shall pay and indemnify the Deposit Trustee against any tax, fee or other charge imposed on or assessed against the cash or non-callable U.S. Government Obligations deposited pursuant to Section 8.4 or Section 8.8 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the outstanding Notes.

Anything in this Article VIII to the contrary notwithstanding, the Deposit Trustee shall deliver or pay to the Issuers from time to time upon the written request of the Issuers and be relieved of all liability with respect to any U.S. legal tender or non-callable U.S. Government Obligations held by it as provided in Section 8.4 or Section 8.8 which are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance or satisfaction and discharge, as the case may be.

Section 8.6.            Repayment to Issuers. Subject to applicable law, any money deposited with the Trustee or any Paying Agent, or then held by the Issuers, in trust (or, if the concept of trust is not recognized under such Issuer’s jurisdiction, as an agent) for the payment of the principal of, premium, if any, or interest, if any, on any Note and remaining unclaimed for two years after such principal and premium, if any, or interest has become due and payable shall be paid to the Issuers on their written request or (if then held by the Issuers) shall be discharged from such trust; and the Holder of such Note shall thereafter, as an unsecured general creditor, look only to the Issuers for payment thereof; and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Issuers as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the direction and expense of the Issuers cause to be published once, in the New York Times and The Wall Street Journal (national edition), notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such notification or publication, any unclaimed balance of such money then remaining shall be repaid to the Issuers.

Section 8.7.            Reinstatement. If the Trustee or Paying Agent is unable to apply any U.S. dollars or U.S. Government Obligations in accordance with Section 8.2, Section 8.3 or Section 8.8, 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 obligations of the Issuers and the Guarantors under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.2, Section 8.3 or Section 8.8 until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 8.2, Section 8.3 or Section 8.8, as the case may be; provided, however, that if the Issuers make any payment of principal of, premium, if any, or interest on any Note following the reinstatement of their obligations, the Issuers shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money held by the Trustee or Paying Agent.

Section 8.8.            Satisfaction and Discharge. This Indenture and the Security Documents will be discharged and will cease to be of further effect (except as to (i) rights of registration of transfer and exchange, (ii) substitution of mutilated, defaced, destroyed, lost or stolen Notes, (iii) rights of Holders to receive payments of principal thereof and interest thereon and (iv) the rights, protections, indemnities and immunities of the Trustee and the specific obligations set forth in this Section 8.8) as to all outstanding Notes and security granted for the Notes and the Guarantees when either:

(1)            all the Notes that have been authenticated and delivered (except lost, stolen or destroyed Notes which have been replaced or paid and Notes for whose payment money has been deposited in trust or segregated and held in trust by the Issuers (or, if the concept of trust is not recognized under such Issuer’s jurisdiction, as an agent) and thereafter repaid to the Issuers or discharged from this trust) have been delivered to the Trustee for cancellation; or

(2)            (A)            all Notes not delivered to the Trustee for cancellation otherwise (i) have become due and payable, (ii) will become due and payable, or may be called for redemption, within one year or (iii) have been called for redemption pursuant to Section 3.7 and, in any case, the Issuers have irrevocably deposited or caused to be deposited with the Trustee as trust funds, in trust solely for the benefit of the Holders, U.S. legal tender, U.S. Government Obligations or a combination thereof, in such amounts as will be sufficient (without consideration of any reinvestment of interest) to pay and discharge the entire Indebtedness (including all principal and accrued and unpaid interest, if any) on the Notes not theretofore delivered to the Trustee for cancellation (provided that if such redemption is made as provided under Section 3.7(a), (x) the amount of cash in U.S. dollars, non-callable Government Securities, or a combination thereof, that must be irrevocably deposited will be determined using an assumed Applicable Premium calculated as of the date of such deposit and (y) if there is an adjustment to the Applicable Premium, the Issuers must provide notice of such updated redemption amount to the Holders (with a copy to the Trustee) no later than two Business Days prior to such redemption date and the depositor must irrevocably deposit or cause to be deposited additional money in trust on the redemption date as necessary to pay the Applicable Premium as determined by such date) (any such amount, the “Applicable Premium Deficit”) (it being understood that any satisfaction and discharge shall be subject to the condition subsequent that such Applicable Premium Deficit is in fact paid); provided that the Trustee shall have no liability whatsoever in the event that such Applicable Premium Deficit is not in fact paid after any satisfaction and discharge of this Indenture and that any Applicable Premium Deficit will be set forth in an Officer’s Certificate delivered to the Trustee simultaneously with the deposit of such Applicable Premium Deficit that confirms that such Applicable Premium Deficit will be applied toward such redemption;

(B)            the Issuers have paid or caused to be paid all other sums payable by them under this Indenture; and

(C)            the Issuers have delivered irrevocable instructions to the Trustee to apply the deposited money toward the payment of the Notes at maturity or on the date of redemption, as the case may be.

In addition, the Issuers must deliver an Officer’s Certificate and an Opinion of Counsel to the Trustee stating that all conditions precedent to the satisfaction and discharge of this Indenture have been complied with. Upon the satisfaction and discharge of this Indenture, all Liens on the Collateral securing the Notes and all Guarantees then in effect will be automatically released (without the need for any action by any party), and the Trustee and Notes Collateral Agent shall execute acknowledgements thereof upon the reasonable request of the Issuer.

After the Notes are no longer outstanding, the Issuers’ and the Guarantors’ obligations in Section 7.6, Section 8.5 and Section 8.7 shall survive any discharge pursuant to this Section 8.8.

After such delivery or irrevocable deposit and receipt of the Officer’s Certificate and Opinion of Counsel, the Trustee, upon written request, shall acknowledge in writing the discharge of the Issuers’ obligations under the Notes and this Indenture except for those surviving obligations specified above.

ARTICLE IX
AMENDMENT, SUPPLEMENT AND WAIVER

Section 9.1.            Without Consent of Holders of the Notes.

(a)            Notwithstanding Section 9.2, Holdings, the Issuers, any other Guarantor (with respect to a Guarantee, this Indenture or any Security Documents to which they are parties), the Trustee and the Notes Collateral Agent (as applicable) may amend this Indenture, the Guarantees, the Notes or any Security Document without the consent of any Holder:

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

(2)            to provide for uncertificated Notes in addition to or in place of certificated Notes (provided that such uncertificated Notes are issued in registered form for purposes of Section 163(f) of the Code);

(3)            to provide for the assumption of the Issuers’ or a Guarantor’s (including Holdings’) obligations to the Holders under this Indenture and under the Security Documents in the case of a merger, amalgamation, consolidation or sale of all or substantially all of the Issuers’ or such Guarantor’s (including Holdings’) assets, or sale, lease, transfer, conveyance or other disposition or assignment in accordance with Section 5.1, including the addition of any co-Issuer of the Notes;

(4)            to add any Guarantee or Guarantor or to effect the release of any Subsidiary Guarantor from any of its obligations under its Guarantee or the provisions of this Indenture (to the extent in accordance with this Indenture);

(5)            to make any change that would provide any additional rights or benefits to the Holders or does not materially adversely affect the rights of any Holder;

(6)            to add covenants or Events of Default for the benefit of the Holders or to surrender any right or power conferred upon the Issuers or any Guarantor;

(7)            to make any change in order to maintain the transferability of the Notes pursuant to Rule 144A or Regulations S or to institutional accredited investors;

(8)            to make any change to this Indenture relating to the transfer and legending of Notes as permitted by this Indenture;

(9)            to evidence and provide for the acceptance of appointment by a successor Trustee or a successor Notes Collateral Agent;

(10)           to conform the text of this Indenture, the Notes, the Guarantees or the Security Documents to any provision of the “Description of notes” contained in the Offering Memorandum, to the extent that such provision in such “Description of notes” was intended to be a substantially verbatim recitation of a provision of this Indenture, the Notes, the Guarantees or the Security Documents, as evidenced by an Officer’s Certificate of the Issuers;

(11)           to provide for the issuance of Additional Notes and related Guarantees (and the grant of security for such Additional Notes and Guarantees) in accordance with this Indenture and the Intercreditor Agreements;

(12)           to make, complete or confirm any grant of Collateral permitted or required by this Indenture or any of the Security Documents or any release, termination or discharge of Collateral that becomes effective as set forth in this Indenture or any of the Security Documents;

(13)           to grant any Lien for the benefit of the holders of any future Pari Passu Notes Lien Indebtedness, Pari Passu ABL Lien Indebtedness or Junior Lien Indebtedness (including by amending any existing Security Document) in accordance with and as permitted by the terms of this Indenture and the Intercreditor Agreements (and, with respect to Junior Lien Indebtedness, any Junior Lien Intercreditor Agreement);

(14)           to add additional secured parties to the Intercreditor Agreements to the extent Liens securing obligations held by such parties are permitted under this Indenture;

(15)           to mortgage, pledge, hypothecate or grant a Lien in favor of the Notes Collateral Agent for the benefit of the Trustee and the Holders as additional security for the payment and performance of the Issuers’ and any Guarantor’s Obligations under this Indenture, in any property, or assets, including any of which are required to be mortgaged, pledged or hypothecated, or in which a security interest is required to be granted to the Trustee or the Notes Collateral Agent in accordance with the terms of this Indenture or otherwise; or

(16)           to provide for the succession of any parties to the Security Documents (and other amendments that are administrative or ministerial in nature) and the Intercreditor Agreements in connection with an amendment, renewal, extension, substitution, refinancing, restructuring, replacement, supplementing or other modification from time to time of any agreement in accordance with the terms of this Indenture, the Intercreditor Agreements and the relevant Security Documents.

(b)            The Holders of the Notes shall be deemed to have consented for purposes of the Security Documents and the Intercreditor Agreements to any of the following amendments, waivers and other modifications to the Security Documents and the Intercreditor Agreements:

(1)            (A) to add other parties (or any authorized agent thereof or trustee therefor) holding Pari Passu Notes Lien Indebtedness that are incurred in compliance with the Term Loan Credit Facility, the ABL Credit Facility and the Notes Documents and (B) to establish that the Liens on any Collateral securing such Pari Passu Notes Lien Indebtedness shall rank equally with the Liens on such Collateral securing the Obligations under this Indenture, the Notes and the Guarantees;

(2)            (A) to add other parties (or any authorized agent thereof or trustee therefor) holding Pari Passu ABL Lien Indebtedness that is incurred in compliance with the Term Loan Credit Facility, the ABL Credit Facility and the Notes Documents, (B) to establish that the Liens on any Collateral securing such Pari Passu ABL Lien Indebtedness shall rank equally with the Liens on such Collateral securing the ABL Obligations and senior to the Liens on such ABL Priority Collateral securing any Obligations under this Indenture, the Notes and the Guarantees, all on the terms provided for in the Intercreditor Agreements in effect immediately prior to such amendment, and (C) to establish that the Liens on any Pari Passu Priority Collateral securing such Pari Passu ABL Lien Indebtedness shall be junior and subordinated to the Liens on such Pari Passu Priority Collateral securing any Obligations under this Indenture, the Notes and the Guarantees, all on the terms provided for in the Intercreditor Agreements in effect immediately prior to such amendment;

(3)            to establish that the Liens on any ABL Priority Collateral securing any Indebtedness replacing the ABL Credit Facility permitted to be incurred under Section 4.9(b)(1) shall be senior to the Liens on such ABL Priority Collateral securing any Obligations under this Indenture, the Notes and the Guarantees, and that any Obligations under this Indenture, the Notes and the Guarantees shall continue to be secured on a first-priority basis by the Pari Passu Priority Collateral and on a second-priority basis on the ABL Priority Collateral; and

(4)            upon any cancellation or termination of the ABL Credit Facility without a replacement thereof, to establish that the ABL Priority Collateral shall become Pari Passu Priority Collateral.

(c)            Any such additional party added pursuant to Section 9.1(b), the Term Loan Collateral Agent, the ABL Collateral Agent, the Trustee and the Notes Collateral Agent shall be entitled to rely upon an Officer’s Certificate certifying that such Pari Passu Notes Lien Indebtedness or Pari Passu ABL Lien Indebtedness, as the case may be, was issued or borrowed in compliance with the Term Loan Credit Facility, the ABL Credit Facility and the Notes Documents, and no Opinion of Counsel shall be required in connection therewith.

(d)            The Holders also shall be deemed to have authorized and directed the Trustee and the Notes Collateral Agent to, and to have otherwise consented for purposes of this Indenture, the Security Documents and the Intercreditor Agreements to the execution and delivery by the Trustee and the Notes Collateral Agent of a Junior Lien Intercreditor Agreement to the extent it is approved by the Term Loan Collateral Agent and the ABL Collateral Agent, respectively, or, if the Term Loan Credit Facility and the ABL Credit Facility, respectively, have been replaced, any other agent for the creditors of the Term Loan Obligations and the ABL Obligations, respectively. Upon execution of the Junior Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement shall be considered a “Security Document.”

(e)            After an amendment under this Indenture, the Security Documents or the Intercreditor Agreements becomes effective, the Issuers shall deliver to Holders of the Notes a notice briefly describing such amendment. However, the failure to give such notice to all Holders, or any defect therein, will not impair or affect the validity of the amendment. Disclosure of any such amendment in a filing made with the SEC shall constitute delivery to Holders of the Notes of such notice.

Section 9.2.            With Consent of Holders of Notes. Except as otherwise provided in this Section 9.2, this Indenture, the Guarantees, the Notes or the Security Documents (subject to compliance with the Intercreditor Agreements) may be amended or supplemented with the consent (which may include consents obtained in connection with a tender offer or exchange offer for Notes) of the Holders of at least a majority in principal amount of the Notes then outstanding, other than Notes beneficially owned by Holdings, the Issuers and their Affiliates, and any existing Default under, or compliance with any provision of, this Indenture, the Notes, the Guarantees or the Security Documents may be waived with the consent (which may include consents obtained in connection with a tender offer or exchange offer for Notes) of the Holders of a majority in principal amount of the Notes then outstanding, other than Notes beneficially owned by Holdings, the Issuers and their Affiliates; provided, however, that without the consent of each Holder affected, an amendment or waiver may not (with respect to any Notes held by a non-consenting Holder):

(1)            reduce, or change the maturity of, the principal of any Note;

(2)            reduce the rate of or extend the time for payment of interest on any Note;

(3)            reduce any premium payable upon redemption of the Notes or change the date on which any Notes are subject to redemption (other than the notice provisions) or waive any payment with respect to the redemption of the Notes; provided, however, that solely for the avoidance of doubt, and without any other implication, any purchase or repurchase of Notes (including pursuant to Section 4.10 and Section 4.13) shall not be deemed a redemption of the Notes;

(4)            make any Note payable in money or currency other than that stated in the Notes;

(5)            modify or change any provision of this Indenture or the related definitions to affect the ranking of the Notes or any Guarantee in a manner that adversely affects the Holders;

(6)            reduce the percentage of Holders necessary to consent to an amendment or waiver to this Indenture or the Notes;

(7)            waive a Default or Event of Default in the payment of principal of, or premium or interest, if any, on any Notes (except a rescission of acceleration of the Notes by the Holders thereof as provided in this Indenture and a waiver of the Payment Default with respect to the Notes that resulted from such acceleration);

(8)            modify the contractual rights of Holders to receive payments of principal of, or premium or interest, if any, on the Notes on or after the due date therefor or to institute suit for the enforcement of any payment on the Notes; provided, however, that solely for the avoidance of doubt, and without any other implication, this provision is not impacted by changes or amendments to Section 4.10 and Section 4.13;

(9)            release any Guarantor from any of its Obligations under its Guarantee or this Indenture, except as permitted by this Indenture;

(10)           modify or change the obligation of the Issuers to make and consummate a Collateral Disposition Offer with respect to any Asset Sale of Pari Passu Priority Collateral in accordance with Section 4.10 after the obligation to make such a Collateral Disposition Offer has arisen; or

(11)           make any change in these amendment and waiver provisions.

In addition, without the consent of the Holders of at least 66⅔% of the principal amount of the Notes then outstanding (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, the Notes), no amendment, supplement or waiver may amend any of the Security Documents or this Indenture if such amendment, supplement or waiver has the effect of releasing all or substantially all of the Collateral from the Liens of this Indenture or any Security Document.

It shall not be necessary for the consent of the Holders under this Section 9.2 to approve the particular form of any proposed amendment or waiver, but it shall be sufficient if such consent approves the substance thereof.

Section 9.3.            Revocation and Effect of Consents. Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a Note is a continuing consent by the Holder and every subsequent Holder of that Note or portion of the Note that evidences the same debt as the consenting Holder’s Note, even if notation of the consent is not made on the Note. However, any such Holder or subsequent Holder 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. When an amendment, supplement or waiver becomes effective in accordance with its terms, this Indenture shall be modified in accordance therewith, and such amendment, supplement or waiver shall form a part of this Indenture for all purposes, and it thereafter binds every Holder. The Issuers may, but shall not be obligated to, fix a record date for determining which Holders consent to such amendment, supplement or waiver.

Section 9.4.            Notation on or Exchange of Notes. The Issuers, or the Trustee and the direction of the Issuers, may place an appropriate notation about an amendment, supplement or waiver on any Note thereafter authenticated. The Issuers in exchange for all Notes may issue and the Trustee shall authenticate new Notes that reflect the amendment, supplement or waiver. Failure to make the appropriate notation or issue a new Note shall not affect the validity and effect of such amendment, supplement or waiver.

Section 9.5.            Trustee to Sign Amendments, Etc. The Trustee and the Notes Collateral Agent (if applicable) shall sign any amended or supplemental indenture or other amendment authorized pursuant to this Article IX if the amendment or supplement does not adversely affect the rights, duties, liabilities or immunities of the Trustee or the Notes Collateral Agent, as applicable.

Section 9.6.            Officer’s Certificate and Opinion of Counsel. In connection with any amendment, supplement or waiver, in signing or refusing to sign any such amendment, supplement or waiver, or in providing its consent to any amendment, supplement or waiver, the Trustee and the Notes Collateral Agent (as applicable) shall be entitled to receive (and, subject to Section 7.1, shall be fully protected in relying upon) an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent under this Indenture, the Intercreditor Agreements and any applicable Security Document to such amendment, supplement or waiver have been satisfied, that such amendment, supplement or waiver is authorized or permitted by this Indenture, the Intercreditor Agreements and any applicable Security Documents, and, with respect to such Opinion of Counsel, that such amendment, supplement or waiver is the legal, valid and binding obligation of the parties thereto, enforceable against it in accordance with its terms.

ARTICLE X
collateral

Section 10.1.           The Collateral.

(a)            The Issuers and the Guarantors hereby appoint Wilmington Trust, National Association to act as Notes Collateral Agent, and each Holder, by its acceptance of any Notes and the Guarantees thereof, irrevocably consents and agrees to such appointment. The Notes Collateral Agent shall have the privileges, powers and immunities as set forth in this Indenture and the Security Documents. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or the Security Documents, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the Security Documents to which the Notes Collateral Agent is a party, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, the Issuers or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture or the Security Documents or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. From and after the Issue Date, the due and punctual payment of the principal of, premium, if any, and interest on the Notes and the Guarantees thereof when and as the same shall be due and payable, whether on an interest payment date, at maturity, by acceleration, repurchase, redemption or otherwise, interest on the overdue principal of and interest (to the extent permitted by law), if any, on the Notes and the Guarantees thereof and performance of all other obligations under this Indenture, including, without limitation, the obligations of the Issuers set forth in Section 7.6 and Section 8.5 herein, and the Notes and the Guarantees thereof and the Security Documents, shall be secured by (i) first-priority Liens and security interests on the Pari Passu Priority Collateral and (ii) second-priority Liens and security interests on the ABL Priority Collateral (in each case subject to Permitted Liens), as and to the extent provided in the Security Documents, which the Issuers and the Guarantors, as the case may be, will enter into on the Issue Date, and at such time, will be secured pursuant to the Security Documents hereafter delivered as required or permitted by this Indenture and the Security Documents. The Collateral will also secure the Issuers’ and the Guarantors’ Obligations under the ABL Credit Facility, Pari Passu Notes Lien Indebtedness (including the Term Loan Obligations) and Pari Passu ABL Lien Indebtedness as provided in the Intercreditor Agreements and any Junior Lien Indebtedness as provided under the Junior Lien Intercreditor Agreement, if any. The Issuers and the Guarantors hereby agree that the Notes Collateral Agent shall hold the Collateral on behalf of and for the benefit of all of the Holders, the Trustee and the Notes Collateral Agent, in each case pursuant to the terms of the Security Documents, and the Notes Collateral Agent and the Trustee are hereby directed and authorized by the Holders to execute and deliver the Intercreditor Agreements and the other Security Documents, as applicable.

(b)            Each Holder, by its acceptance of any Notes and the Guarantees thereof, irrevocably consents and agrees to the terms of the Security Documents (including, without limitation, the provisions providing for foreclosure and release of Collateral) as the same may be in effect or may be amended from time to time in accordance with their terms, agrees to the appointment of the Notes Collateral Agent and authorizes and directs the Notes Collateral Agent (i) to enter into the Security Documents (including, without limitation, the Intercreditor Agreements and the Junior Lien Intercreditor Agreement, if any), whether executed on or after the Issue Date, and perform its obligations and exercise its rights, powers and discretions under the Security Documents in accordance therewith (expressly including appearing before Spanish notaries to grant or execute any Spanish Public Document or private document related to this mandate and, specifically, those deemed necessary or appropriate according to the mandate received (including, but not limited to, amendments or ratifications of this Indenture, the Guarantees or any other document related thereto, all the above with express faculties of self-contracting (subcontratación), sub-empowering (subdelegación) or multiple representation (multirepresentación)), (ii) make the representations of the Holders set forth in the Security Documents (including, without limitation, the Intercreditor Agreements and the Junior Lien Intercreditor Agreement, if any), and (iii) bind the Holders on the terms as set forth in the Security Documents (including, without limitation, the Intercreditor Agreements and the Junior Lien Intercreditor Agreement, if any).

(c)            The Trustee, the Notes Collateral Agent and each Holder, by accepting the Notes and the Guarantees thereof acknowledges that, as more fully set forth in the Security Documents, the Collateral as now or hereafter constituted shall be held for the benefit of all the Holders, the Notes Collateral Agent and the Trustee, and that the Lien of this Indenture and the Security Documents in respect of the Trustee, the Notes Collateral Agent and the Holders is subject to and qualified and limited in all respects by the Security Documents and actions that may be taken thereunder.

(d)            For the purposes of any grant of any Lien under the laws of the Province of Québec, Canada, which may now or in the future be required to be provided by any Issuer and Guarantor, Wilmington Trust, National Association, as Notes Collateral Agent, is hereby irrevocably authorized and appointed by each of the Issuers and Guarantors hereto to act as hypothecary representative (within the meaning of Article 2692 of the Civil Code of Québec) for all present and future Secured Parties (in such capacity, the “Hypothecary Representative”) in order to hold any hypothec granted under the laws of the Province of Québec, Canada and to exercise such rights and duties as are conferred upon the Hypothecary Representative under the relevant deed of hypothec and applicable laws (with the power to delegate any such rights or duties). Each of the Holders, the Trustee and the Notes Collateral Agent, by its respective acceptance of the Notes and the Guarantees thereof, irrevocably confirms, consents and agrees to such appointment. The execution prior to the date hereof by the Notes Collateral Agent in its capacity as the Hypothecary Representative of any deed of hypothec or other Security Documents made pursuant to the laws of the Province of Québec, Canada is hereby ratified and confirmed. Any Person who becomes a Secured Party or successor Notes Collateral Agent shall be deemed to have consented to and ratified the foregoing appointment of the Notes Collateral Agent as the Hypothecary Representative on behalf of all Secured Parties, including such Person and any Affiliate of such Person designated above as a Secured Party. For greater certainty, the Notes Collateral Agent, acting as the Hypothecary Representative, shall have the same rights, powers, immunities, indemnities and exclusions from liability as are prescribed in favor of the Notes Collateral Agent in this Indenture, which shall apply mutatis mutandis. In the event of the resignation of the Notes Collateral Agent (which shall include its resignation as the Hypothecary Representative) and appointment of a successor Notes Collateral Agent, such successor Notes Collateral Agent shall also act as the Hypothecary Representative, as contemplated above.

(e)            To the extent any such Lien or security interest is not perfected by the Issue Date, the Issuers and the applicable Guarantors will use their commercially reasonable efforts to perform all acts and things that may be required, including obtaining any required consents from third parties, to have all Liens and security interests in the Collateral duly created and enforceable and perfected, to the extent required by this Indenture and the Security Documents.

Section 10.2.           Maintenance of Collateral; Further Assurances.

(a)            The Issuers and the Guarantors (i) shall maintain the Collateral in good, safe and insurable operating order, condition and repair (ordinary wear and tear excepted) and to do all other acts as may be reasonably necessary or appropriate to maintain and preserve the Collateral and (ii) shall pay all real estate and other taxes (except such as are being contested in good faith and by appropriate negotiations or proceedings), and maintain in full force and effect all material permits and certain insurance coverages.

(b)            The Issuers and the Guarantors shall execute any and all further documents, financing statements or analogous, agreements and instruments, and take all further actions that may be required under applicable law, or that the Notes Collateral Agent or the Trustee may reasonably request, in order to grant, preserve, protect and perfect and render opposable to third parties the validity and priority of the security interests and Liens created or intended to be created by the Security Documents in the Collateral (including, without limitation, the notarization of the Spanish Liens and the delivery of notifications to counterparties thereunder). In addition, from time to time, the Issuers and the Guarantors will reasonably promptly secure the obligations under this Indenture and Security Documents by pledging or creating, or causing to be pledged or created, perfected or rendered opposable to third parties security interests and Liens with respect to the Collateral to the extent required by this Indenture and/or the Security Documents.

Section 10.3.           After-Acquired Property. Upon the acquisition by any of the Issuers or the Guarantors after the Issue Date of any assets (other than U.S. Excluded Assets, Excluded Pension Assets or assets that are excluded from the Collateral pursuant to the Guaranty and Security Principles), the Issuers or such Guarantor shall execute and deliver such Mortgages, security instruments, financing statements or analogous filings and such certificates, title insurance policies, surveys and opinions as are required under this Indenture or any Security Document to vest in the Notes Collateral Agent a perfected security interest, with the priority required by this Indenture and the Security Documents, subject only to Permitted Liens, in such after-acquired property and to have such after-acquired property added to the Collateral, and thereupon all provisions of this Indenture and the Security Documents relating to the Collateral shall be deemed to relate to such after-acquired property to the same extent and with the same force and effect.

Section 10.4.           Impairment of Security Interest. Neither Holdings nor any of its Restricted Subsidiaries will grant any Person, or permit any Person to retain (other than the Notes Collateral Agent), any Liens on the Collateral, other than Permitted Liens. The Issuers and each Guarantor will, at their sole cost and expense, execute and deliver all such agreements and instruments as necessary, or as the Trustee or the Notes Collateral Agent may reasonably request, to more fully or accurately describe the assets and property intended to be Collateral or the Obligations intended to be secured by the Security Documents.

Section 10.5.           Real Estate Mortgages and Filings.

With respect to any Mortgaged Property located in the United States and owned on the Issue Date that forms a part of the Collateral which is required to be mortgaged to the Notes Collateral Agent in accordance with the requirements of this Indenture and/or the Security Documents, within 90 days after the Issue Date or as soon as practicable thereafter using commercially reasonable efforts, or in the case of Mortgaged Property acquired after the Issue Date, within 90 days after the acquisition thereof or as soon as practicable thereafter using commercially reasonable efforts, the applicable Issuer or Guarantor shall deliver to the Notes Collateral Agent the following:

(1)            a fully executed counterpart of a Mortgage covering the applicable Mortgaged Property, in accordance with the requirements of this Indenture, duly executed by the applicable Issuer or such Guarantor, together with (a) satisfactory evidence of the completion (or satisfactory arrangements for the completion) of all recordings and filings of such Mortgage (and payment of any taxes or fees in connection therewith), together with any necessary fixture filings, as may be necessary to create a valid, perfected first priority lien, subject to no Liens other than Permitted Liens and (b) evidence of the payment in full by the applicable Issuer or the applicable Guarantor of all mortgage tax, recording fees and all title search and premiums and examination costs (or that satisfactory arrangements for such payments have been made);

(2)            with respect to each Mortgaged Property, to the extent delivered to the Term Loan Collateral Agent in connection with the Term Loan Credit Facility, a policy or policies or marked-up unconditional binder of title insurance, as applicable, in favor of the Notes Collateral Agent and its successors and/or assigns, in the form and amount consistent with the title insurance policies issued under the Term Loan Credit Facility paid for by the Issuers, issued by a nationally recognized title insurance company insuring the Lien of such Mortgage as a valid first priority Lien (subject to Permitted Liens) on the applicable real property described therein, together with such endorsements, coinsurance and reinsurance as delivered under the Term Loan Credit Facility;

(3)            such surveys (or any updates or affidavits that the title insurance company may reasonably require in connection with the issuance of the title insurance policies and sufficient for the title insurance company to remove the standard survey exception and issue the survey-related endorsements) in the form consistent with the surveys delivered under the Term Loan Credit Facility;

(4)            with respect to each Mortgaged Property, an executed legal opinion in form and substance reasonably acceptable to the Notes Collateral Agent and consistent with the opinions delivered under the Term Loan Credit Facility;

(5)            such other documents, affidavits, certificates, instruments, agreements and other items as shall be reasonably required to comply with Section 10.5(1) through Section 10.5(4), and necessary to perfect the Notes Collateral Agent’s security interest, with the lien priority required by this Indenture in such Mortgaged Properties; and

(6)            delivery to the Notes Collateral Agent and the Trustee an Officer’s Certificate of the Issuers stating that the Issuers and the applicable Guarantors have satisfied their obligations under this Section 10.5 (upon which the Notes Collateral Agent and the Trustee may conclusively rely).

Section 10.6.           Release of Liens on the Collateral.

(a)            The Liens on the Collateral securing the Notes will automatically and without the need for any further action by any Person be released:

(1)            in whole, upon payment in full of the principal of, accrued and unpaid interest and premium, if any, on the Notes;

(2)            in whole upon:

(A)            a Legal Defeasance or Covenant Defeasance as set forth in Article VIII; or

(B)            the satisfaction and discharge of this Indenture as set forth in Section 8.8;

(3)            in part, as to any property constituting Collateral that (A) is sold, transferred or otherwise disposed of by the Issuers or any Guarantor (other than to the Issuers or another Guarantor) in a transaction not prohibited by this Indenture or the Security Documents at the time of such sale, transfer or disposition or (B) is owned or at any time acquired by a Subsidiary Guarantor that has been released from its Guarantee in accordance with this Indenture, concurrently with the release of such Guarantee (including in connection with the designation of a Subsidiary Guarantor as an Unrestricted Subsidiary);

(4)            in whole or in part, as applicable, in accordance with the provisions set forth in Article IX;

(5)            in part, in accordance with the applicable provisions of the Security Documents and the Intercreditor Agreements;

(6)            in whole or in part, as applicable, as to all or any part of the Collateral that has been taken by eminent domain, condemnation or other similar circumstances;

(7)            if and to the extent any Collateral becomes a U.S. Excluded Asset, Excluded Pension Assets or is excluded pursuant to the Guaranty and Security Principles;

(8)            as to the Collateral of any Guarantor, if and to the extent any Guarantor becomes an Excluded Subsidiary; or

(9)            as ordered pursuant to applicable law under a final and non-appealable order or judgment of a court of competent jurisdiction;

provided that, in the case of any release in whole pursuant to Section 10.6(a)(1) and Section 10.6(a)(2) above, all amounts owing to the Trustee and the Notes Collateral Agent under this Indenture, the Notes, the Guarantees, the Security Documents and the Intercreditor Agreements have been paid in full.

(b)            To the extent required by this Indenture for the release of properties that constitute Collateral, the Issuers and each applicable Guarantor will furnish to the Trustee and the Notes Collateral Agent, prior to each proposed release of such Collateral pursuant to the Security Documents and this Indenture, an Officer’s Certificate and an Opinion of Counsel confirming that all conditions precedent provided for in this Indenture and the Security Documents relating to the release of Collateral have been complied with.

(c)            Upon compliance by the Issuers or the Guarantors, as the case may be, with the conditions precedent set forth above, the Trustee, the Term Loan Collateral Agent or the Notes Collateral Agent shall (at the request and expense of the Issuers or the Guarantors) promptly execute and deliver such releases or other documents or otherwise authorize the filing of such documents prepared by the Issuers or the Guarantors in order to cause to be released and reconveyed to the Issuers or the applicable Guarantors, as the case may be, the released Collateral.

(d)            In addition to the foregoing, in the event that the Issuers or any Guarantor has any Collateral or intends to have any Collateral subject to a Permitted Lien, and the Company or such Guarantor requests in writing, pursuant to an Officer’s Certificate and Opinion of Counsel confirming that all conditions precedent hereunder and under the Security Documents to such subordination of such Collateral have been complied with, that the Trustee or Notes Collateral Agent, as applicable, enter into a subordination agreement with the holder of such Permitted Lien in order to subordinate the Lien of the Notes Collateral Agent in such Collateral to the Lien of such holder in such Collateral, the Trustee and the Notes Collateral Agent, as applicable, shall execute, acknowledge and deliver to the Issuers or such Guarantor or the holder of such Permitted Lien such an instrument of subordination (in the form prepared by the Company, or the holder of such Permitted Lien and reasonably satisfactory to the Trustee or the Notes Collateral Agent, as applicable, at the Company’s sole expense) promptly after such written request.

Section 10.7.           Authorization of Actions to be Taken by the Trustee or the Notes Collateral Agent Under the Security Documents.

(a)            Subject to the provisions of the Security Documents, each of the Trustee or the Notes Collateral Agent may (but shall not be obligated to), in its sole discretion and without the consent of the Holders, on behalf of the Holders, take all actions it deems necessary or appropriate in order to (1) enforce any of its rights or any of the rights of the Holders under the Security Documents and (2) collect and receive any and all amounts payable in respect of the Collateral in respect of the obligations of the Issuers and the Guarantors hereunder and thereunder. Subject to the provisions of the Security Documents, the Trustee or the Notes Collateral Agent shall have the power to institute and to maintain such suits and proceedings as it may deem expedient to prevent any impairment of the Collateral by any acts that may be unlawful or in violation of the Security Documents or this Indenture, and such suits and proceedings as the Trustee or the Notes Collateral Agent may deem expedient to preserve or protect its interest and the interests of the Holders in the Collateral (including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of the Holders or the Trustee).

(b)            Neither the Trustee nor the Notes Collateral Agent shall be responsible for, nor do they make any representation regarding, the existence, genuineness or value of any of the Collateral or for the validity, sufficiency, perfection, priority or enforceability of the Liens in any of the Collateral, whether impaired by operation of law or by reason of any action or omission to act on its part hereunder, for the ownership, transferability, validity or sufficiency of the Collateral or any agreement or assignment contained therein, for the validity of the title of the Issuers to the Collateral, for insuring the Collateral or for the payment of taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral. Neither the Trustee nor the Notes Collateral Agent shall have any responsibility for recording, filing, re-recording or re-filing any financing statement, continuation statement, termination statement, document, instrument or other notice in any public office at any time or times or to otherwise take any action to perfect or maintain the perfection of any security interest granted to it under the Security Documents or otherwise.

(c)            Where any provision of this Indenture requires that additional property or assets be added to the Collateral and a security interest with respect to such property or assets would not be created or perfected without preparation and execution of additional documentation, the Issuers and each Guarantor shall deliver to the Trustee or the Notes Collateral Agent the following:

(1)            a request from the Issuers that such Collateral be added;

(2)            the form of instrument adding such Collateral, which, based on the type and location of the property subject thereto, shall be in substantially the form of the applicable Security Documents entered into on the Issue Date, with such changes thereto as the Issuers shall consider appropriate, or in such other form as the Issuers shall deem proper; provided that any such changes or such form are administratively satisfactory to the Trustee and the Notes Collateral Agent; and

(3)            such financing statements, if any, as the Issuers shall deem necessary to perfect the Notes Collateral Agent’s security interest in such Collateral.

(d)            The Trustee and the Notes Collateral Agent, in giving any consent or approval under the Security Documents or in executing any Security Documents (a “Security Document Action”), shall be entitled to receive, as a condition to such Security Document Action, a request of the Issuers and, in all cases, an Officer’s Certificate to the effect that all conditions precedent specified in this Indenture with respect to such Security Document Action have been satisfied and that such Security Document Action does not violate this Indenture, and the Trustee and the Notes Collateral Agent shall be fully protected in taking such Security Document Action on the basis of such Officer’s Certificate.

(e)            Notwithstanding anything else to the contrary herein, whenever reference is made in this Indenture or any Security Document to any discretionary action by, consent, designation, specification, requirement or approval of, notice, request or other communication from, or other direction given or action to be undertaken or to be (or not to be) suffered or omitted by the Notes Collateral Agent or to any election, decision, opinion, acceptance, use of judgment, expression of satisfaction or other exercise of discretion, rights or remedies to be made (or not to be made) by the Notes Collateral Agent, it is understood that in all cases the Notes Collateral Agent shall be fully justified in failing or refusing to take any such action under this Indenture if it shall not have received such written instruction, advice or concurrence of the Trustee (acting at the direction of the Holders and otherwise in accordance with this Indenture, the Intercreditor Agreements and other Security Documents), and such indemnity from the Holders as it deems appropriate. This provision is intended solely for the benefit of the Notes Collateral Agent and its successors and permitted assigns and is not intended to and will not entitle the other parties hereto to any defense, claim or counterclaim, or confer any rights or benefits on any party hereto.

Section 10.8.           Information Regarding Collateral.

(a)            The Issuers will furnish to the Notes Collateral Agent, with respect to the Issuers or any Guarantor, prompt written notice of any change in such Person’s (1) legal name, (2) jurisdiction of organization or formation and head or registered office, (3) identity or corporate structure or (4) Organizational Identification Number. Promptly upon the occurrence of any of the foregoing, the Issuers and the Guarantors will make all filings under the Uniform Commercial Code, PPSA and any other applicable laws that are required by this Indenture and/or the Security Documents in order for the Collateral to be made subject to the Lien of the Notes Collateral Agent under this Indenture and/or the Security Documents in the manner and to the extent required by this Indenture or any of the Security Documents, and shall take all necessary action so that such Lien is perfected and rendered opposable to third parties with the same priority as immediately prior to such change to the extent required by this Indenture and/or the Security Documents. The Issuers also agree promptly to notify the Notes Collateral Agent in writing if any material portion of the Collateral is damaged, destroyed or condemned.

(b)            The Issuers shall deliver to the Trustee and the Notes Collateral Agent an Officer’s Certificate attaching supplemental schedules required under the Security Documents to the extent required under and at the same time as similar supplemental schedules are delivered to the Term Loan Collateral Agent, and upon the reasonable request of the Notes Collateral Agent (or at any same time as an updated Perfection Certificate is delivered to the Term Loan Collateral Agent), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information), or in the case of any non-U.S. Issuer or Guarantor, updated information relating to the Collateral consistent with such information provided on the Issue Date, in each case consistent with such Perfection Certificate or information delivered to the Term Loan Collateral Agent.

Section 10.9.           Guaranty and Security Principles. Notwithstanding anything to the contrary in this Article X, and subject to the Security Documents, the perfection of a security interest in Collateral outside the United States shall be subject to the Guaranty and Security Principles. Neither the Notes Collateral Agent nor the Trustee shall have any obligation to monitor or verify the compliance by Holdings, the Issuers or the Guarantors with the Guaranty and Security Principles. In executing and delivering any Security Document after the Issue Date, the Notes Collateral Agent shall be entitled to receive and conclusively rely upon a the Issuers’ request given pursuant to Section 10.7(d) to take such Security Document Action, which shall include a certification by the Issuers that the actions of the Issuers (or applicable Guarantor) in respect of such Collateral, including the execution and delivery of the subject Security Document, comply with the Guaranty and Security Principles.

Section 10.10.          Regarding the Notes Collateral Agent.

(a)            The Notes Collateral Agent is authorized and empowered to appoint one or more subagents or co-collateral agents as it deems necessary or appropriate.

(b)            Neither the Trustee nor the Notes Collateral Agent shall have any obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by the Issuers or the Guarantors or is cared for, protected or insured or has been encumbered, or that the Notes Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuers’ or any Guarantor’s property constituting Collateral intended to be subject to the Lien and security interest of the Security Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the Notes Collateral Agent pursuant to this Indenture or any Security Document other than pursuant to the instructions of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes or as otherwise provided in the Security Documents.

(c)            Notwithstanding anything to the contrary contained in this Indenture or the Security Documents, in the event the Notes Collateral Agent is entitled or required to commence an action to foreclose or otherwise exercise its remedies to acquire control or possession of the Collateral, the Notes Collateral Agent shall not be required to commence any such action or exercise any remedy or to inspect or conduct any studies of any property under the Mortgages or take any such other action if the Notes Collateral Agent has determined that the Notes Collateral Agent may incur personal liability as a result of the presence at, or release on or from, the Collateral or such property, of any hazardous substances. The Notes Collateral Agent shall at any time be entitled to cease taking any action described in this Section 10.10(c) if it no longer reasonably deems any indemnity, security or undertaking from the Issuers or the Holders to be sufficient.

(d)            The Notes Collateral Agent shall not be liable for (i) any action taken or omitted to be taken by it in connection with this Indenture and the Security Documents or instrument referred to herein or therein, except to the extent that any of the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct, and (ii) interest on any money received by it except as the Notes Collateral Agent may agree in writing with the Issuers (and money held in trust by the Notes Collateral Agent shall be segregated from other funds except to the extent required by law).

(e)            The Notes Collateral Agent shall exercise reasonable care in the custody of any Collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon. The Notes Collateral Agent shall be deemed to have exercised reasonable care in the custody of Collateral in its possession if the Collateral is accorded treatment substantially equal to that which it accords similar property held for its own benefit and shall not be liable or responsible for any loss or diminution in value of any of the Collateral, including, without limitation, by reason of the act or omission of any carrier, forwarding agency or other agent or bailee selected by the Notes Collateral Agent in good faith.

(f)            The parties hereto and the Holders hereby agree and acknowledge that neither the Notes Collateral Agent nor the Trustee shall assume, be responsible for or otherwise be obligated for any liabilities, claims, causes of action, suits, losses, allegations, requests, demands, penalties, fines, settlements, damages (including foreseeable and unforeseeable), judgments, expenses and costs (including, but not limited to, any remediation, corrective action, response, removal or remedial action, or investigation, operations and maintenance or monitoring costs, for personal injury or property damages, real or personal) of any kind whatsoever, pursuant to any environmental law as a result of this Indenture, the Security Documents or any actions taken pursuant hereto or thereto. Further, the parties hereto and the Holders hereby agree and acknowledge that in the exercise of its rights under this Indenture and the Security Documents, the Notes Collateral Agent or the Trustee may hold or obtain indicia of ownership primarily to protect the security interest of the Notes Collateral Agent or the Trustee in the Collateral and that any such actions taken by the Notes Collateral Agent or the Trustee shall not be construed as or otherwise constitute any participation in the management of such Collateral. In the event that the Notes Collateral Agent or the Trustee is required to acquire title to an asset for any reason, or take any managerial action of any kind in regard thereto, which in the Notes Collateral Agent’s or the Trustee’s sole discretion may cause the Notes Collateral Agent or the Trustee to be considered an “owner or operator” under the provisions of the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. §9601, et seq., or otherwise cause the Notes Collateral Agent or the Trustee to incur liability under CERCLA or any other federal, state or local law, the Notes Collateral Agent and the Trustee reserves the right, instead of taking such action, to either resign as the Notes Collateral Agent or the Trustee or arrange for the transfer of the title or control of the asset to a court-appointed receiver. Neither the Notes Collateral Agent nor the Trustee shall be liable to the Issuers, the Guarantors or any other Person for any environmental claims or contribution actions under any federal, state or local law, rule or regulation by reason of the Notes Collateral Agent’s or the Trustee’s actions and conduct as authorized, empowered and directed hereunder or relating to the discharge, release or threatened release of hazardous materials into the environment. If at any time it is necessary or advisable for property to be possessed, owned, operated or managed by any Person (including the Notes Collateral Agent or the Trustee) other than the Issuers or the Guarantors, subject to the terms of the Security Documents, a majority in interest of Holders shall direct the Notes Collateral Agent or the Trustee to appoint an appropriately qualified Person (excluding the Notes Collateral Agent or the Trustee) whom it shall designate to possess, own, operate or manage, as the case may be, such property.

(g)            For the avoidance of doubt, the rights, privileges, protections, immunities and benefits given to the Notes Collateral Agent hereunder, including, without limitation, its right to be indemnified prior to taking action, shall survive the satisfaction, discharge or termination of this Indenture or earlier termination, resignation or removal of the Trustee, in such capacity, with respect to the holders of the ABL Obligations or the other Pari Passu Secured Obligations, as applicable, to the extent the Security Documents remain in force thereafter.

(h)            Without limiting the foregoing, with respect to any Collateral located outside of the United States (“Foreign Collateral”), the Notes Collateral Agent shall have no obligation to directly enforce, or exercise rights and remedies in respect of, or otherwise exercise any judicial action or appear before any court in any jurisdiction outside of the United States. To the extent the Holders of a majority in aggregate outstanding amount of Notes outstanding determine that it is necessary or advisable in connection with any enforcement or exercise of rights with respect to Foreign Collateral to exercise any judicial action or appear before any such court, the Holders of a majority in aggregate outstanding amount of Notes outstanding shall be entitled to direct the Notes Collateral Agent to appoint a local agent for such purpose (subject to the receipt of such protections, security and indemnities as the Notes Collateral Agent shall determine in its sole discretion to protect the Notes Collateral Agent from liability).

(i)            Neither the Notes Collateral Agent nor the Trustee shall have any responsibility or liability for the actions or omissions of the ABL Collateral Agent or the Term Loan Collateral Agent or any other “Controlling Collateral Agent” under the Pari Passu Intercreditor Agreement, nor shall the Trustee or Notes Collateral Agent be obligated at any time to indemnify any person in connection with the exercise of any remedy under the Security Documents.

(j)            In acting under this Indenture or any other Notes Document, the Notes Collateral Agent shall have all the rights and protections provided hereunder and in the Note Documents as well as the rights and protections afforded to the Trustee (including its rights to be compensated, reimbursed and indemnified under Section 7.6).

(k)            The Notes Collateral Agent may resign at any time by notice to the Trustee and the Company, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. The Notes Collateral Agent may be removed by the Company at any time, upon 30 days’ written notice to the Notes Collateral Agent. The Holders of a majority in principal amount of the Securities may remove the Notes Collateral Agent by so notifying the Company and the Notes Collateral Agent in writing and may appoint a successor Notes Collateral Agent. If the Notes Collateral Agent resigns or is removed under this Indenture, and such Holders do not reasonably promptly appoint a successor, the Company shall appoint a successor collateral agent. If no successor collateral agent is appointed and has accepted such appointment within 30 days after the Notes Collateral Agent gave notice of resignation or was removed, the retiring Notes Collateral Agent or the Holders of at least 10% in aggregate principal amount of the Securities may, at their option, appoint a successor Notes Collateral Agent or petition a court of competent jurisdiction for the appointment of a successor. In any case, the appointment of a successor agent shall be subject to the prior written approval of the Issuers (which approval may not be unreasonably withheld). Upon the acceptance of its appointment as successor collateral agent hereunder, such successor collateral agent shall succeed to all the rights, powers and duties of the retiring Notes Collateral Agent, and the term “Notes Collateral Agent” shall mean such successor collateral agent, and the retiring or removed Notes Collateral Agent’s appointment, powers and duties as the Notes Collateral Agent shall be terminated. After the retiring Notes Collateral Agent’s resignation or removal hereunder, the provisions of this Section 10.10 (and Section 7.6) shall continue to inure to its benefit.

(l)            Except as expressly set forth in this Indenture or under the Security Documents or Intercreditor Agreements, in each case that the Notes Collateral Agent may or is required hereunder or under any Security Document or any Intercreditor Agreement to take any action (an “Action”), including without limitation to make any determination, to give consents, to exercise rights, powers or remedies, to release or sell Collateral or otherwise to act hereunder or under any Security Document or any Intercreditor Agreement, the Notes Collateral Agent may seek direction from the Holders of a majority in aggregate principal amount of the then outstanding Notes. The Notes Collateral Agent shall not be liable with respect to any Action taken or omitted to be taken by it in accordance with the direction from the Holders of a majority in aggregate principal amount of the then outstanding Notes. If the Notes Collateral Agent shall request direction from the Holders of a majority in aggregate principal amount of the then outstanding Securities with respect to any Action, the Notes Collateral Agent shall be entitled to refrain from such Action unless and until the Notes Collateral Agent shall have received direction from the Holders of a majority in aggregate principal amount of the then outstanding Notes, and the Notes Collateral Agent shall not incur liability to any Person by reason of so refraining.

(m)            The Notes Collateral Agent shall be permitted to use overnight carriers to transmit possessory collateral and shall be not liable for any items lost or damages in transmit.

(n)            In no event shall the Notes Collateral Agent be required to execute and deliver any landlord lien waiver, estoppel or collateral access letter, or any account control agreement or any instruction or direction letter delivered in connection with such document that the Notes Collateral Agent determines adversely affects it or otherwise subjects it to personal liability, including without limitation agreements to indemnify any contractual counterparty; provided that nothing in this clause (n) shall be implied as imposing any such obligation on the Issuers, Holdings or any Guarantor to obtain any such landlord lien waiver, estoppel or collateral access letter, or any account control agreement.

Section 10.11.          Notes Collateral Agent as English Security Trustee.

(1)            “Appointee” means any receiver, administrator or other insolvency officer appointed in respect of any Issuer or Guarantor or its assets.

(2)            “Charged Property” means the assets of the Issuers and the Guarantors subject to a security interest under the English Security Documents.

(3)            “Delegate” means any delegate, agent, attorney or co-trustee appointed by the Notes Collateral Agent (in its capacity as security trustee).

Section 10.12.          Authorization of Actions to be Taken by the Term Loan Collateral Agent. Subject to the terms of the Security Documents, with respect to the Issuers or Guarantors that (i) are organized in Germany, Luxembourg and Finland (the “Specified Foreign Grantors”) or (ii) that have granted liens or security interests in certain foreign pledged collateral governed by the laws of Germany, Luxembourg and Finland (“Specified Foreign Collateral”), the Issuer, the Guarantors and the Notes Collateral Agent have appointed the Term Loan Collateral Agent for the benefit of the Secured Parties as collateral and security interest agent for purposes of creation, perfection and enforcement with respect to the Specified Foreign Grantors and Specified Foreign Collateral under the applicable Security Documents. With respect to the Specified Foreign Grantors and Specified Foreign Collateral, the Issuer or Guarantors, as applicable, shall take all necessary steps (if any) in accordance with the terms of the applicable Security Documents to ensure a continuous, valid and perfected security interest with respect to the Specified Foreign Grantors and Specified Foreign Collateral in favor of the Term Loan Collateral Agent (as collateral and security interest agent on behalf of the Notes Collateral Agent) or the Notes Collateral Agent.

Section 10.13.         Negative Pledge. The Issuers and each Guarantor shall not, and Holdings shall not permit any of its Restricted Subsidiaries to, further pledge the Collateral as security or otherwise, subject to Permitted Liens.

Section 10.14.      Spanish Particularities in Relation to the Spanish Liens.

(a)            By their acceptance of the Notes and the Guarantees hereunder, each of the Holders hereby:

(b)            For the above purposes, each of the Holders shall, if so requested by the Notes Collateral Agent:

(c)            Each of the Holders hereby authorizes the Notes Collateral Agent (whether or not by or through employees or agents):

(d)            To the extent any Holder is unable to grant such powers referred to above or in any other provision of this Indenture to the Notes Collateral Agent, each such Holder irrevocably undertakes before the Notes Collateral Agent, the Trustee and the other Holders to appear and execute with the Notes Collateral Agent to enable the Notes Collateral Agent to exercise any right, power, authority or discretion vested in it as Notes Collateral Agent pursuant to this Indenture and to execute any document or instrument including any Spanish Public Document. Neither the Trustee nor the Notes Collateral Agent shall have any liability for any failure of the Holders to grant a power of attorney or to otherwise execute, notarize, and apostille any document required in order for the Trustee or Notes Collateral Agent to exercise any rights, remedies, powers or discretions in respect of the Spanish Liens.

ARTICLE XI
GUARANTEES

Section 11.1.      Guarantees.

(a)            For value received, each Guarantor, fully and unconditionally, jointly and severally with each other Guarantor and each other Person which may become a Guarantor hereunder, guarantees the Notes and Obligations of the Issuers hereunder and thereunder, and guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and Notes Collateral Agent, that: (i) the principal of and premium, if any, and interest, if any, on the Notes shall be paid in full when due, whether at Stated Maturity, by acceleration, call for redemption or otherwise, together with interest on the overdue principal, if any, and interest on any overdue interest, if any, to the extent lawful, and all other Obligations of the Issuers to the Holders, Notes Collateral Agent or the Trustee under this Indenture, the Security Documents or the Notes shall be paid in full or performed, all in accordance with the terms hereof and thereof; and (ii) in case of any extension of time of payment or renewal of any Notes or of any such other obligations, the same shall be paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise. Each of the Guarantees shall be a guarantee of payment and not of collection.

(b)            Each Guarantor hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, the recovery of any judgment against the Issuers, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a Guarantor.

(c)            Each Guarantor hereby waives the benefits of diligence, presentment, demand for payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuers, any right to require a proceeding first against the Issuers or any other Person, protest, notice and all demands whatsoever and covenants that the Guarantee of such Guarantor shall not be discharged as to any Note or this Indenture except by complete performance of the Obligations contained in such Note and this Indenture and such Guarantee. Each of the Guarantors hereby agrees that, in the event of a Default in payment of principal or premium, if any, or interest on any Note, whether at its Stated Maturity, by acceleration, call for redemption, purchase or otherwise, legal proceedings may be instituted by the Trustee on behalf of, or by, the Holder of such Note, subject to the terms and conditions set forth in this Indenture, directly against each of the Guarantors to enforce each such Guarantor’s Guarantee without first proceeding against the Issuers or any other Guarantor. Each Guarantor agrees that if, after the occurrence and during the continuance of an Event of Default, the Trustee, the Notes Collateral Agent or any of the Holders are prevented by applicable law from exercising their respective rights to accelerate the maturity of the Notes, to collect interest on the Notes, or to enforce or exercise any other right or remedy with respect to the Notes, such Guarantor shall pay to the Trustee for the account of the Holders, upon demand therefor, the amount that would otherwise have been due and payable had such rights and remedies been permitted to be exercised by the Trustee, the Notes Collateral Agent or any of the Holders and any other amounts due and owing to the Trustee under this Indenture.

(d)            If any Holder, the Notes Collateral Agent or the Trustee is required by any court or otherwise to return to the Issuers or any Guarantor, or any custodian, trustee, liquidator or other similar official acting in relation to the Issuers or any Guarantor, any amount paid by any of them to the Trustee, the Notes Collateral Agent or such Holder, the Guarantee of each of the Guarantors, to the extent theretofore discharged, shall be reinstated in full force and effect. This Section 11.1(d) shall remain effective notwithstanding any contrary action which may be taken by the Trustee, the Notes Collateral Agent or any Holder in reliance upon such amount required to be returned. This Section 11.1(d) shall survive the termination of this Indenture.

(e)            Each Guarantor further agrees that, as between each Guarantor, on the one hand, and the Holders, the Notes Collateral Agent and the Trustee, on the other hand, (x) the maturity of the Obligations guaranteed hereby may be accelerated as provided in Article VI for the purposes of the Guarantee of such Guarantor, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby, and (y) in the event of any acceleration of such Obligations as provided in Article VI, such Obligations (whether or not due and payable) shall forthwith become due and payable by each Guarantor for the purpose of the Guarantee of such Guarantor.

(f)            Each Guarantor that makes a payment for distribution under its Guarantee is entitled upon payment in full of all guaranteed Obligations under this Indenture to seek contribution from each other Guarantor in a pro rata amount of such payment based on the respective net assets of all the Guarantors at the time of such payment in accordance with GAAP.

Section 11.2.      Execution and Delivery of Guarantee. To evidence its Guarantee set forth in Section 11.1, each Guarantor agrees that this Indenture or a supplemental indenture in substantially the form of Exhibit C attached hereto shall be executed on behalf of such Guarantor by an Officer of such Guarantor (or, if an Officer is not available, by a board member or director) on behalf of such Guarantor by manual, electronic or facsimile signature. Each Guarantor hereby agrees that its Guarantee set forth in Section 11.1 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Guarantee on the Notes. In case the Officer, board member or director of such Guarantor whose signature is on this Indenture or supplemental indenture, as applicable, no longer holds such or any office at the time the Trustee authenticates any Note, the Guarantee shall be valid nevertheless.

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

Section 11.3.      Severability. In case any provision of any Guarantee shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

Section 11.4.      Limitation of Guarantors’ Liability.

(a)            Each Guarantor, and by its acceptance hereof, each Holder confirms that it is the intention of all such parties that the Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance for purposes of the Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law or the provisions of its local law relating to fraudulent transfer or conveyance. To effectuate the foregoing intention, the Trustee, the Holders, the Notes Collateral Agent and the Guarantors hereby irrevocably agree that the Obligations of such Guarantor under its Guarantee and the related security granted as Collateral therefor (other than a company that is a direct or indirect parent of Holdings or the Issuers) shall be limited to the maximum amount that will not, after giving effect to all other contingent and fixed liabilities of such Guarantor (including, without limitation, any guarantees under the Term Loan Credit Facility and the ABL Credit Facility) and after giving effect to any collections from or payments made by or on behalf of any other Guarantor in respect of the Obligations of such other Guarantor under its Guarantee or the related security granted as Collateral therefor or pursuant to its contribution obligations under this Indenture, result in the Obligations of such Guarantor under its Guarantee or the related security granted as Collateral therefor constituting a fraudulent conveyance, fraudulent preference or fraudulent transfer or otherwise reviewable transaction under applicable law, or otherwise to reflect limitations under applicable laws, including with respect to maintenance of share capital and other applicable statutory provisions.

(b)            Limitation on Guarantees by Spanish Guarantors. Any guarantee, indemnity, obligation and/or liability granted, incurred, undertaken, assumed or otherwise agreed by any Spanish Guarantor shall be subject to the following:

(1)            it shall not extend to any obligation to the extent that the same would constitute unlawful financial assistance within the meaning of articles 143 and 150 of the Spanish Companies Law;

(2)            if the Spanish Guarantor is incorporated as a limited liability company (sociedad de responsabilidad limitada), restrictions contained in the Spanish Companies Law shall be applicable; including in particular, in case the provisions of article 401 of the Spanish Companies Law are considered to be applicable to any Notes’ guarantee or security provided by a Spanish Guarantor, the fact that such guarantee or security should be limited to twice the amount of the Spanish Guarantor’s own funds (recursos propios), to the extent that the Notes are not secured by a mortgage, a pledge over securities, a public guarantee (garantía pública) or with a joint and several guarantee granted by a credit institution; and

(3)            for the purposes of article 135 and the Additional Provision Four (Disposición Adicional Cuarta) of the Spanish Insolvency Law, the obligations of each Spanish Guarantor under the Guarantee shall be governed by the terms of this Indenture at any time such that the Spanish Guarantor’s obligations hereunder vis-à-vis each Holder of a Note authenticated and delivered by the Trustee and the Trustee shall not be affected by (and shall remain exactly within the terms stated herein irrespective of):

(i)            the approval or ratification of a composition agreement (convenio) as a result of the insolvency of any of the Issuers or Guarantors; or

(ii)            the approval or execution of an out-of-court workout (a refinancing agreement (acuerdo de refinanciación)) and which may be entered into by any of the Issuers or Guarantors (in any case, prior to the declaration of insolvency, whether voluntary or mandatory);

provided that the scope, term and amount of any liability and guaranteed obligations of any Spanish Guarantor will be governed or affected by said convenio or acuerdo de refinanciación, to the extent that such Holder or Trustee has expressly accepted (by voting in favor or otherwise) the effect contemplated by such composition agreement or out-of-court workout, as the case may be. Unless the relevant Holder or Trustee expressly agrees (by voting in favor or otherwise) a write-off to the guaranteed obligations or guarantee granted by any Spanish Guarantor hereunder, the guarantee shall secure at any time 100% of the payment obligations under the Indenture and the Notes.

(c)            Limitation on Guarantees by French Guarantors. Each Guarantor incorporated under the laws of France (hereafter, a “French Guarantor”) and, by its acceptance of Notes, each Holder, hereby confirms the following:

(1)            the obligations and liabilities of any French Guarantor under this Indenture, and in particular under the Notes and the Guarantee, shall not extend to include any obligations or liabilities which if incurred would constitute a breach of the financial assistance prohibitions within the meaning of article L. 225-216 of the French Code de commerce and/or would constitute a misuse of corporate assets within the meaning of article L. 241-3, L. 242-6 or L. 244-1 of the French Code de commerce or any other law or regulations having the same effect, as interpreted by French courts;

(2)            the obligations and liabilities of each French Guarantor under this Indenture for the payment obligations under the Notes and the Guarantee of the Issuers or any other Guarantor which is not a direct or indirect Subsidiary of such French Guarantor, shall be limited at any time to an amount equal to the aggregate of the proceeds of the Notes to the extent directly or indirectly on-lent by the Issuers or such other Guarantor to that French Guarantor or any of its Subsidiaries under intercompany loans (including pursuant to cash pooling arrangements) or similar arrangements and outstanding on the date a payment is requested to be made by such French Guarantor under this Guarantee (the “Maximum Guaranteed Amount”), it being specified that notwithstanding any other provisions of this Indenture, any payment made by such French Guarantor under this Guarantee in respect of the payment obligations of the Issuers or any other Guarantor shall immediately reduce pro tanto the outstanding amount of the intra-group loans, or any sums, due by such French Guarantor under such intra-group loan (including pursuant to cash pooling arrangements) or similar arrangements referred to above;

(3)            the obligations and liabilities of each French Guarantor under this Indenture for the payment obligations under the Notes and the Guarantee of its direct or indirect Subsidiaries which are or become a Guarantor from time to time under this Indenture or any supplemental indenture shall be limited to all amounts incurred by such Subsidiaries which are French Guarantors;

(4)            for the avoidance of doubt, any payment made by a French Guarantor under Section 11.4(c)(2) shall reduce the Maximum Guaranteed Amount; and

(5)            it is acknowledged that no French Guarantor is acting jointly and severally with the other Guarantors and no French Guarantor shall therefore be considered as “co-débiteur solidaire” as to its Obligations pursuant to the Guarantee given pursuant therewith.

For the purpose of this Section 11.4(c), “Subsidiary” means, in relation to any company, another company which is controlled by it within the meaning of articles L.233-3 of the French Code de commerce.

(d)            Limitation on Guarantees by German Guarantors. For the purpose of this Section 11.4(d):

Any reference to “the date of this Indenture” shall, with regard to any Guarantor acceding after the date of this Indenture which is a German Guarantor, be construed as a reference to the date of accession of such Guarantor.

“German Guarantor” means a German GmbH Guarantor or a German GmbH & Co. KG Guarantor;

“German GmbH Guarantor” means any Guarantor incorporated in the Federal Republic of Germany as a private limited company “Gesellschaft mit beschränkter Haftung”;

“German GmbH & Co. KG Guarantor” means any Guarantor established in the Federal Republic of Germany as a limited partnership “Kommanditgesellschaft” with a private limited company “Gesellschaft mit beschränkter Haftung” as its sole general partner “persönlich haftender Gesellschafter”;

“Guarantee Obligations” means the Obligations of any German Guarantor granted or incurred under this Indenture; and

“Net Assets” means, in relation to a German GmbH Guarantor or a German GmbH & Co. KG Guarantor's general partner “persönlich haftender Gesellschafter”, the amount of its assets (section 266 sub-section 2 A, B, C, D and E HGB and including, for the avoidance of doubt, any claim for consideration or return “Gegenleistungs- oder Rückgewähranspruch” of the relevant German Guarantor against the Upstream Affiliate whose obligations are secured by the relevant Guarantee Obligations) less (i) the aggregate of its liabilities (section 266 sub-section 3 B, C (including, for the avoidance of doubt, any Guarantee Obligations), D and E HGB) and (ii) its stated share capital “Stammkapital.”

(1)            Subject to Sections 11.4(d)(2) to Section 11.4(d)(4), the enforcement of the Guarantee Obligations shall be limited in relation to German Guarantors as follows:

(A)            Each Secured Party agrees not to enforce the Guarantee Obligations if and to the extent:

(i)            the Guarantee Obligations relate to any Obligations of, or amounts owed by, an Affiliate of the relevant German Guarantor (other than the relevant German Guarantor’s Subsidiaries; provided that the relevant Obligations or amounts owed by the relevant Subsidiary are or are based upon own liabilities of such Subsidiary but not upon Guarantee Obligations (each an “Upstream Affiliate”); and

(ii)            the relevant German Guarantor’s Net Assets, or in the case of a German GmbH & Co. KG Guarantor, the Net Assets of its general partner “persönlich haftender Gesellschafter”, would have been, at the date of this Indenture, reduced to zero or would have been reduced below zero as a result of any payment in relation to the Guarantee Obligations (such circumstances constituting a “Share Capital Impairment”).

(B)            For the purposes of the calculation of the Net Assets, the following balance sheet items shall be treated as follows:

(i)            any claim for consideration or return “Gegenleistungs- oder Rückgewähranspruch” of the relevant German Guarantor against the Upstream Affiliate whose Obligations are secured by the relevant Guarantee Obligations shall be treated as due and payable as at the date of this Indenture, and shall be activated based on a commercial projection "kaufmännische Prognoseentscheidung" of a managing director and the information available at the time of this Indenture; and

(ii)            the amount of any anticipated payment under this Indenture shall be treated as due and payable as at the date of this Indenture.

(2)            In relation to the limitations applicable in case of a Share Capital Impairment pursuant to Section 11.4(d)(1)(A), the Issuers hereby undertake to deliver to the Trustee, within ten Business Days after receipt from the Trustee of a notice stating that the Trustee intends to demand payment of the Guarantee Obligations from a German Guarantor, (i) a balance sheet of the relevant German Guarantor, and, in the case of a German GmbH & Co. KG Guarantor, also of such German Guarantor’s general partner “persönlich haftender Gesellschafter”, as of the date of this Indenture together with (ii) a detailed calculation of the amount of the Net Assets of the German Guarantor or its general partner “persönlich haftender Gesellschafter”, respectively, at the date of this Indenture, taking into account the adjustments and treatments set forth in Section 11.4(d)(1) (a “Net Asset Determination”). Any such balance sheet and Net Asset Determination shall be prepared in accordance with the Accounting Principles as consistently applied and shall be, upon the Trustee’s request (acting reasonably), confirmed by the relevant German Guarantor’s Auditors within a period of thirty Business Days following such request. Based upon the Net Asset Determination (as and to the extent confirmed by the relevant German Guarantor’s Auditors, if such confirmation has been requested by the Trustee), the relevant German Guarantor shall fulfill its Guarantee Obligations, and the Trustee shall be entitled to enforce the Guarantee Obligations, in an amount which would, in accordance with the Net Asset Determination (as and to the extent confirmed by the relevant German Guarantor’s Auditors, if such confirmation has been requested by the Trustee), not have caused a Share Capital Impairment on the relevant German Guarantor's part or, in the case of a German GmbH & Co. KG Guarantor, on the part of its general partner “persönlich haftender Gesellschafter” on the date of this Indenture.

(3)            The limitations set out in Section 11.4(d)(1) in relation to Share Capital Impairments shall not apply:

(A)            to any Guarantee Obligations which relate to any monies borrowed under this Indenture which (i) have been on-lent or otherwise made available to the relevant German Guarantor or any of its Subsidiaries and (ii) are still outstanding; or

(B)            if, at the date of this Indenture, the German Guarantor was party to a domination agreement “Beherrschungsvertrag” and/or a profit transfer agreement “Gewinnabführungsvertrag” as dominated entity “beherrschtes Unternehmen”, unless the German Guarantor can prove at the time of enforcement of the Guarantee, that the existence of such a domination agreement “Beherrschungsvertrag” and/or a profit transfer agreement “Gewinnabführungsvertrag” does not lead to the full inapplicability of section 30 paragraph 1 sentence 1 GmbHG.

(4)            Any limitations set out in Section 11.4(d)(1) in relation to Share Capital Impairments shall further not apply:

(A)            for so long as the German Guarantors have not complied with their obligations pursuant to Section 11.4(d)(1); or

(B)            if and to the extent, at the time of enforcement of the Guarantee Obligations, such limitations are not required to protect the managing directors of the relevant German Guarantor or, in case of a German GmbH & Co. KG Guarantor, its general partner “persönlich haftender Gesellschafter”, from the risk of personal liability arising from such enforcement of the Guarantee Obligations.

(5)            No reduction of the amount enforceable under the Guarantee Obligations in accordance with the above limitations will prejudice the rights of the Trustee to continue enforcing the Guarantee Obligations (subject always to the operation of the limitation set out above at the time of such enforcement) until full satisfaction of the guaranteed claims.

(e)            Limitation on Guarantees by Finnish Guarantors. Notwithstanding anything to the contrary in this Indenture, the Guarantee, indemnity and other obligations of, and any Liens granted by, any Guarantor incorporated in Finland (the “Finnish Guarantor”) under this Indenture shall not be assumed or granted by the Finnish Guarantor to the extent assumption or granting of the same would constitute unlawful distribution of company’s assets within the meaning of Chapter 13 Section 1 of the Finnish Companies Act (osakeyhtiölaki 624/2006, as amended, supplemented, re-enacted or renewed, the “Finnish Companies Act”) or financial assistance within the meaning of Chapter 13 Section 10 of the Finnish Companies Act.

In the assessment of the compliance with Chapter 13 Section 1 of the Finnish Companies Act, among other things:

(1)            any amount paid or payable by the Finnish Guarantor under this Indenture or in respect of the Notes, the Term Loan Credit Facility and any other group financing instrument to which the Finnish Guarantor is party or becomes party or in respect of which the Finnish Guarantor grants a guarantee after or in connection with the signing of this Indenture;

(2)            subordination of claims owed to it in favor of any group financing instrument; and

(3)            any amount paid from proceeds of any collateral granted by Finnish Guarantor in respect of the Term Loan Credit Facility or any other group financing instrument,

shall be taken into account.

Section 11.5.      Releases. A Subsidiary Guarantor shall be automatically released from its Obligations under its Guarantee and its Obligations under this Indenture (without the need for any action by any party) upon:

(a)

(1)            any sale or other disposition of all or substantially all of the assets of such Subsidiary Guarantor (by merger, consolidation or otherwise) to a Person that is not (either before or after giving effect to such transaction) Holdings, the Issuers or a Restricted Subsidiary, if the sale or other disposition does not violate the applicable provisions of this Indenture (including Section 4.10);

(2)            any sale, exchange or transfer (by merger, consolidation or otherwise) of all or a portion of the Equity Interests of such Subsidiary Guarantor after which the applicable Subsidiary Guarantor is no longer a Restricted Subsidiary, which sale, exchange or transfer does not violate the applicable provisions of this Indenture (including Section 4.10);

(3)            the proper designation by Holdings of any Restricted Subsidiary that is a Subsidiary Guarantor as an Unrestricted Subsidiary;

(4)            upon the release of an Obligation by such Subsidiary Guarantor under the Term Loan Credit Facility, the ABL Credit Facility or such other Debt Facility that initially triggered such Subsidiary Guarantor’s obligations to incur such Guarantee if such Subsidiary Guarantor would not then otherwise be required to guarantee the Notes pursuant to this Indenture;

(5)            if the Issuers exercise their Legal Defeasance option or their Covenant Defeasance option pursuant to Section 8.2 or Section 8.3 or if their Obligations under this Indenture are discharged in accordance with Section 8.8;

(6)            such Subsidiary Guarantor becomes an Excluded Subsidiary; or

(7)            liquidation or dissolution of such Subsidiary Guarantor; provided that no Default or Event of Default has occurred and is continuing; and

(b)            the Issuers delivering to the Trustee an Officer’s Certificate and an Opinion of Counsel to the effect that all conditions precedent provided for in this Indenture relating to the release of such Subsidiary Guarantor’s Guarantee have been complied with.

For the avoidance of doubt, and notwithstanding anything to the contrary under the Notes Documents or elsewhere, none of any CFC or FSHCO (or any Subsidiary of a CFC or FSHCO) shall provide a Guarantee.

Upon the release of any Guarantee in accordance with this Indenture, the Trustee and the Term Loan Collateral Agent shall execute any documents reasonably requested in order to evidence the release of the Subsidiary Guarantor from its Obligations under its Guarantee.

Any Subsidiary Guarantor not released from its Obligations under its Guarantee shall remain liable for the full amount of principal of and interest on the Notes and for the other Obligations of any Guarantor under this Indenture as provided in this Article XI.

Section 11.6.      Benefits Acknowledged. Each Guarantor (other than any Finnish Guarantor) acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by this Indenture and that its Guarantee and waivers pursuant to its Guarantee are knowingly made in contemplation of such benefits. Each Finnish Guarantor acknowledges that entering into this Indenture is in its best interests and is based on commercial grounds.

Section 11.7.      Post-Closing Guarantors. Notwithstanding anything to the contrary in this Indenture and subject to the Security Documents, for the avoidance of doubt, the Post-Closing Guarantors will jointly and severally guarantee the Notes on a senior secured basis within (i) 90 days after the Issue Date (provided that to the extent that the state of emergency (estado de alarma) declared by the Spanish Government to be able to manage the health crisis situation caused by COVID-19 coronavirus has not been lifted by the end of such period, such period shall be automatically extended until the date that is ten Business Days after such state of alarm has been lifted, in respect of the Spanish Subsidiary, (ii) within 90 days after the Issue Date in respect of the Post-Closing Guarantors organized under the laws of France and (iii) within 90 days after the Issue Date (provided that if by the end of such period any governmental orders due to COVID-19 are in force that would limit the ability to convene a partners’ meeting, such period shall be automatically extended to 60 days after such governmental orders are revoked), in respect of the Post-Closing Guarantor organized under the laws of Germany (or, in each case, as soon as practicable thereafter using commercially reasonable efforts) and will enter into a supplemental indenture to this Indenture substantially the form of Exhibit C attached hereto and the applicable Security Documents at such time.

ARTICLE XII
MISCELLANEOUS

Section 12.1.      Concerning the Trust Indenture Act. The Trust Indenture Act of 1939, as amended, shall not be applicable to, and shall not govern, this Indenture, the Notes or the Guarantees.

Section 12.2.      Notices. Any notice, request, direction, instruction or communication by the Issuers, any Guarantor, the Trustee or the Notes Collateral Agent to the others is duly given if in writing and delivered in person or mailed by first class mail (registered or certified, return receipt requested), telecopier or overnight air courier guaranteeing next day delivery, or sent by email, to the addresses set forth below:

If to the Issuers or any Guarantor:

c/o Venator Materials PLC

Titanium House, Hanzard Drive

Wynyard Park

Stockton On Tees, TS22 5FD

United Kingdom

Attention: Jeff Pehrson

E-mail: jeff_pehrson@venatorcorp.com

With a copy (which shall not constitute notice) to:

Latham & Watkins LLP

811 Main Street

Suite 3700

Houston, Texas 77002

E-mail: michael.chambers@lw.com

Attention: Michael Chambers, Esq.

If to the Trustee or the Notes Collateral Agent:

Wilmington Trust, National Association

50 South Sixth Street, Suite 1290

Minneapolis, MN 55402

Attention: Venator Materials Administrator

Fax: (612) 217-5651

The parties hereto, by written notice to the others, may designate additional or different addresses for subsequent notices or communications.

All notices and communications (other than those sent to Holders and the Trustee or the Notes Collateral Agent) shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; when receipt acknowledged, if telecopied or emailed; and the next Business Day after timely delivery to the courier, if sent by overnight air courier promising next Business Day delivery. Notices to the Trustee or the Notes Collateral Agent shall be deemed to have been duly given upon actual receipt thereof.

Any notice or communication to a Holder shall be mailed by first class mail or by overnight air courier promising next Business Day delivery to its address shown on the register kept by the Registrar. Notwithstanding the foregoing, as long as the Notes are Global Notes, notices to be given to the Holders shall be given to the Depositary, in accordance with its applicable policies as in effect from time to time. 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. Any notice mailed or delivered to a Holder in the aforesaid manner shall be conclusively deemed to have been received by such Holder, whether or not such Holder actually receives such notice.

In respect of this Indenture, the Trustee shall not have any duty or obligation to verify or confirm that the Person sending instructions, directions, reports, notices or other communications or information by electronic transmission is, in fact, a Person authorized to give such instructions, directions, reports notices or other communications or information on behalf of the party purporting to send such electronic transmission; and the Trustee shall not have any liability for any losses, liability, costs or expenses incurred or sustained by any party as a result of such reliance upon or compliance with such instructions, directions, reports, notices or other communications or information. Each other party agrees to assume all risks arising out of the use of electronic methods to submit instructions, directions, reports, notices or other communications or indemnifications to the Trustee, including, without limitation, the risk of the Trustee acting on unauthorized instructions, notices, reports or other communications or information, and the risks of interception and misuse by third parties.

If a notice or communication is delivered in the manner provided above within the time prescribed, it is duly given, whether or not the addressee receives it, except in the case of notices or communications given to the Trustee, which shall be effective only upon actual receipt.

If the Issuers deliver a notice or communication to Holders, they shall deliver a copy to the Trustee and the Notes Collateral Agent at the same time.

In case, by reason of the suspension of or irregularities in regular mail service or by reason of any other cause, it shall be impractical to mail notice of any event to Holders of Notes when such notice is required to be given pursuant to any provision of this Indenture, then any manner of giving such notice as shall be reasonably satisfactory to the Trustee shall be deemed to be sufficient giving of such notice for every purpose hereunder.

Any request, demand, authorization, direction, notice, consent or waiver required or permitted under this Indenture shall be in the English language, except that any published notice may be in an official language of the country of publication.

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.

Section 12.3.      Certificate and Opinion as to Conditions Precedent. Upon any request or application by the Issuers to the Trustee to take any action under this Indenture (other than in connection with the issuance of the Initial Notes), the Issuers shall furnish to the Trustee upon request:

(a)            an Officer’s Certificate (which shall include the statements set forth in Section 12.4) stating that, in the opinion of the signer, all conditions precedent and covenants, if any, provided for in this Indenture relating to the proposed action have been satisfied; and

(b)            an Opinion of Counsel (which shall include the statements set forth in Section 12.4) stating that, in the opinion of such counsel, all such conditions precedent and covenants have been satisfied.

In case of any application or request as to which the furnishing of other specified documents is specifically required by any provision of this Indenture relating to such particular application or request, no additional Officer’s Certificate or Opinion of Counsel need be furnished.

Section 12.4.      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 any certificate required by Section 4.4 or Section 10.8 hereof) shall include substantially:

(a)            a statement that the Person making such certificate or opinion has read and understands such covenant or condition;

(b)            a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;

(c)            a statement that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been satisfied; and

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

In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one Person may certify or give an opinion with respect to some matters and one or more other Persons as to other matters, and any one Person may certify or give an opinion as to such matters in one or several documents.

Any certificate or opinion of an Officer of the Issuers may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such Officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his or her certificate or opinion is based are erroneous. Any such certificate or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an Officer or Officers of the Issuers stating that the information with respect to such factual matters is in the possession of the Issuers, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.

Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.

Section 12.5.      Rules by Trustee and Agents. The Trustee may make reasonable rules for action by or at a meeting of Holders. Each of the Agents may make reasonable rules and set reasonable requirements for its functions.

Section 12.6.      No Personal Liability of Directors, Officers, Employees and Stockholders. No director, officer, employee, incorporator, member or stockholder of the Issuers or any Guarantor will have any liability for any indebtedness, obligations or liabilities of the Issuers or any Guarantor under the Notes, this Indenture, the Guarantees, the Intercreditor Agreements or the Security Documents, as applicable, or for any claim based on, in respect of or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes and the Guarantees.

Section 12.7.      Governing Law; Consent to Jurisdiction; WAIVER OF JURY TRIAL THE LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS INDENTURE, THE NOTES AND THE GUARANTEES. The Intercreditor Agreements will be governed by, and construed in accordance with, the laws of the State of New York, and the Security Documents will be governed by, and construed in accordance with, the laws of the State of New York or the applicable jurisdiction. Each of the parties to this Indenture each hereby irrevocably submits to the non-exclusive jurisdiction of any New York State or federal court sitting in the Borough of Manhattan in The City of New York in any action or proceeding arising out of or relating to the Notes, the Guarantees and this Indenture, and all such parties hereby irrevocably agree that all claims in respect of such action or proceeding may be heard and determined in such New York State or federal court and hereby irrevocably waive, to the fullest extent that they may legally do so, the defense of an inconvenient forum to the maintenance of such action or proceeding. For the avoidance of doubt, the application of articles 470-1 to 470-19 (inclusive and to the fullest extent permitted by law) of the Luxembourg Act of 10 August 1915 on commercial companies, as amended, shall be expressly excluded.

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

Section 12.8.      No Adverse Interpretation of Other Agreements. This Indenture may not be used to interpret any other indenture, loan agreement or debt agreement of Holdings, the Issuers or any of their Subsidiaries or of any other Person. Any such indenture, loan agreement or debt agreement may not be used to interpret this Indenture.

Section 12.9.      Successors. All agreements of the Issuers and the Guarantors in this Indenture and the Notes and the Guarantees, as applicable, shall bind their respective successors and assigns. All agreements of the Trustee and the Notes Collateral Agent in this Indenture shall bind their respective successors and assigns.

Section 12.10.      Severability; Entire Agreement. 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. This Indenture, the exhibits hereto and the Notes Documents set forth the entire agreement and understanding of the parties related to this transaction and supersedes all prior agreements and understandings, oral or written.

Section 12.11.      Execution in Counterparts. This Indenture may be executed in two or more counterparts, which when so executed shall constitute one and the same agreement. The exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes. For the avoidance of doubt, the words “execution,” “signed,” “signature,” “delivery” and words of like import in or relating to this Indenture or any document to be signed in connection with this Indenture shall be deemed to include electronic signatures, deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, and the parties hereto consent to conduct the transactions contemplated hereunder by electronic means; provided that, notwithstanding anything herein to the contrary, the Trustee and the Notes Collateral Agent is not under any obligation to agree to accept electronic signatures in any form or in any format unless agreed to by it pursuant to procedures approved by such it.

Section 12.12.      Table of Contents, Headings, Etc. The Table of Contents 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 12.13.      Force Majeure. In no event shall the Trustee, the Notes Collateral Agent or any other Agent be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, fire, riots, strikes, or stoppages for any reason, pandemics, epidemics, embargoes, governmental actions, 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, the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility; communications or computer (software and hardware) services, it being understood that the Trustee, the Notes Collateral Agent and each of the Agents shall use reasonable efforts which are consistent with accepted practices in the U.S. banking industry to resume performance as soon as practicable under the circumstances.

Section 12.14.      Legal Holidays. If any scheduled payment date with respect to the payment of principal, premium, if any, or interest on the Notes, including, without limitation, any interest payment date, redemption date, Stated Maturity or maturity date, falls on a day that is not a Business Day, then notwithstanding any other provision of this Indenture or of the Notes, the payment to be made on such payment date will be made on the next succeeding Business Day with the same force and effect as if made on such payment date, and no additional interest will accrue solely as a result of such delayed payment. Interest on overdue principal and interest, if any, will accrue at the applicable interest rate on the Notes.

Section 12.15.      Benefit of this Indenture. Nothing in this Indenture or in the Notes, express or implied, shall give to any Person, other than the parties hereto, any Authenticating Agent, any Paying Agent, any Registrar and their successors hereunder and the Holders of Notes, any benefit or any legal or equitable right, remedy or claim under this Indenture.

Section 12.16.      Spanish Provisions Relating to Executive Proceedings.

(a)            Spanish Public Documents

(i)            Any supplemental indenture to be executed by any Spanish Guarantor (as well as any amendments hereto or thereto) shall be formalized as a Spanish Public Document (including as an attachment the Indenture and any other supplemental indentures amending its terms) on the relevant date in which the Spanish Guarantor accedes as a Guarantor hereunder, so that it may have the status of a notarial document for all purposes contemplated in Article 517, numbers 4º or 5º (as applicable) of the Spanish Civil Procedural Law. Any costs and expenses relating to such formalization shall be paid and satisfied by the relevant Spanish Guarantor.

(ii)            The costs of issuance of first copies (with and without enforcement title) of such Spanish Public Document shall be borne by the relevant Spanish Guarantor, and the cost regarding the issuance of additional copies will be borne by the party requesting such additional copies.

(b)            Enforcement Proceedings

(i)            Upon enforcement, the sum payable by any Spanish Guarantor shall be the total aggregate amount determined as payable by the Issuers and/or Guarantors in the schedule of calculations provided by the Issuers to the Trustee in accordance with Section 7.2(n) of this Indenture. For the purposes of Articles 571 et seq. of the Spanish Civil Procedural Law, the Spanish Guarantors, the Notes Collateral Agent and the Trustee expressly agree that such amount shall be considered as due, liquid and payable and may be claimed pursuant to the same provisions of such law.

(ii)            For the purpose of the provisions of Art. 571 et seq. of the Spanish Civil Procedural Law, it is expressly agreed by the Spanish Guarantors, the Notes Collateral Agent and the Trustee that the determination of the debt to be claimed through the executive proceedings shall be effected by the Notes Collateral Agent or the Trustee by means of the relevant schedule of calculations referred to in paragraph (i) above. By virtue of the foregoing, to exercise executive action by the Notes Collateral Agent or the Trustee it will be sufficient to present (1) an original notarial first or authentic copy of this Indenture (or supplemental indenture to the same), (2) a notarial certificate, if necessary, for the purposes described in paragraph (iii) below, (3) the notarial document (acta notarial) which incorporates the schedule of calculations received by the Trustee of the amount due by the Issuers and/or the Guarantors (including the Spanish Guarantor), evidencing that the determination of the amounts due and payable by the Spanish Guarantor have been calculated as agreed in this Indenture and that such amounts coincide with the referred schedule of calculations and (4) a notarial document (acta notarial) evidencing that the Spanish Guarantor has been served notice of the amount that is due and payable.

(iii)            The amount due arising from such schedule of calculations shall be notified to the Spanish Guarantor in an attestable manner at least three days in advance of exercising the executive action set out in paragraph (ii) above.

(iv)            The Spanish Guarantors hereby expressly authorize the Notes Collateral Agent and the Trustee to request and obtain certificates and documents issued by the notary who has formalized this Indenture (or any supplemental indenture or amendment thereto) in order to evidence its compliance with the entries of his registry-book and the relevant entry date for the purpose of numbers 4º or 5º (as applicable) of Article 517 of the Spanish Civil Procedural Law. The cost of such certificate and documents will be for the account of the Spanish Guarantor in the manner provided under this Indenture.

(v)            For the purposes of article 540.2 of the Spanish Civil Procedural Law, the Spanish Guarantors acknowledge and accept that, provided that the relevant assignment, transfer or change of Holders has been made in accordance with the terms of this Indenture, any assignment, transfer or change of Holders shall be duly and sufficiently evidenced to any Spanish court by means of a certificate issued by the Notes Collateral Agent or the Trustee confirming who the Holders are in each moment, and therefore, those who are certified as Holders by the Notes Collateral Agent or the Trustee shall be able to initiate enforcement in Spain through procedimiento ejecutivo without further evidence being required.

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